People v. Davis

Full title: THE PEOPLE, Plaintiff and Respondent, v. DWIGHT DAVIS, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Mar 19, 2020

No. F076756 (Cal. Ct. App. Mar. 19, 2020)

Opinion

F076756

03-19-2020

THE PEOPLE, Plaintiff and Respondent, v. DWIGHT DAVIS, Defendant and Appellant.

Byron C. Lichstein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Peter H. Smith, and Keith P. Sager, Deputy Attorneys General, for Plaintiff and Respondent.

POOCHIGIAN, Acting P.J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. SF018517A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. Byron C. Lichstein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Peter H. Smith, and Keith P. Sager, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant/defendant Dwight Davis, a state prison inmate, was charged with sexually and physically assaulting his cellmate, and faced possible indeterminate life sentences. At trial, his cellmate testified defendant committed acts of forcible sodomy, beat him, and threatened to kill him. Defendant also testified at trial, and stated they had consensual sex and his cellmate initiated every incident. Defendant further testified he physically assaulted and threatened his cellmate because he stole his property and used a racial slur against him.

Defendant was found not guilty of the sexual assault charges that carried the life terms. Defendant was convicted as charged of assault with a deadly weapon by a person confined in state prison (Pen. Code, § 4501),¹ and criminal threats (§ 422) with a deadly weapon enhancement (§ 12022, subd. (b)(1)); the jury found the great bodily injury enhancements attached to these counts were not true. Defendant was sentenced to the second strike term of 19 years eight months.

1 All further statutory citations are to the Penal Code unless otherwise indicated.

On appeal, defendant contends the matter must be remanded for preparation of a new probation report because the factual summary was based on the cellmate's pretrial statements about the alleged sexual assault, the report erroneously stated that he was convicted of the sexual assault charges, and the recommended sentence was improperly based on the charges that he was acquitted on.

Defendant also argues that a new sentencing hearing must be held because the trial court failed to state reasons for selection of the upper term and imposition of consecutive sentences, and the error was prejudicial because the court improperly relied on the erroneous statements in the probation report. Defendant separately argues that the consecutive terms were prohibited by section 654, and the matter must also be remanded for the court to exercise its discretion as to whether to dismiss the prior serious felony enhancement.

As we will explain, the entirety of the probation report contained two apparent typographical errors, but the sentencing recommendations were not calculated based on the acquitted charges. In addition, the court was well aware of erroneous statements in the probation report, the trial evidence, and the verdicts, and remand for a new probation report and new sentencing hearing is not required.

We will dismiss the prior prison term enhancement and otherwise affirm.

FACTS

The prosecution's case-in-chief

C.D. was an inmate at Wasco State Prison. C.D. testified he was sentenced to prison for robbing a bank.² C.D. was homosexual but did not tell his fellow inmates about his sexuality.

2 As we will explain, C.D.'s credibility was impeached on several points during his testimony. For example, on direct examination, C.D. testified he robbed the bank by walking in and handing a note to the teller. On cross-examination, he admitted that he robbed the bank while dressed as a woman, used a bogus check to get cash, and evaded detection for months until a family member turned him in.

On February 28, 2014, C.D. was placed in a cell with defendant. The cell had a solid exterior door with two small windows. Defendant had the lower bunk and C.D. had the upper bunk. C.D. and defendant did not previously know each other.

C.D. testified that shortly after he was moved into the cell, defendant asked if he was homosexual. C.D. said no. C.D. testified he hardly spoke to defendant, but defendant repeatedly made sexual "passes" at him on the first night and told him to come down to his bunk. C.D. refused.³

3 On cross-examination, C.D. was impeached on this point and admitted he previously testified that he talked a lot with defendant because there was nothing else to do when they were in the cell.

C.D. testified that on his second day in the cell, he spoke to five or six correctional officers and asked to change cells. C.D. testified he was scared of defendant but did not tell the officers why he wanted to change cells. The officers brushed him off.⁴

4 On cross-examination, defense counsel extensively questioned C.D. about his previous requests to change his placement. Defendant admitted he previously lied to correctional officers and falsely he was suicidal so he could be transferred out of Wasco.

C.D. testified that on March 5, 2014, he asked Correctional Officer Chad Look to move him to a different cell because defendant was "weirding me out" and scaring him.⁵

5 As will be explained below, Officer Look testified as a defense witness, refuted much of C.D.'s trial testimony, and testified C.D. never said he was afraid of defendant or believed defendant was going to hurt him.

C.D. testified about an incident that occurred on the evening of March 5, 2014, when they were in the cell together. Defendant placed cardboard over the cell door's windows to block the view. C.D. removed the cardboard. Defendant told him not to do that. A correctional officer walked by the cell and told them to remove the cardboard. C.D. told the officer that defendant would not let him do that. The officer told defendant that he was going to be written up for that.

Defendant told C.D. that he wanted him out of the cell by the next day. C.D. said he was already trying to leave.

On the morning of March 6, 2014, C.D. was out of his cell for breakfast and asked Officer Look about the cell change. C.D. said he really needed to get out because he was not getting along with defendant. Look told C.D. that he could change cells but had to wait for a couple of hours.

After breakfast, C.D. and defendant were back in their cell. C.D. testified defendant placed the hard, plastic cup that was issued by the state inside a tube sock. He began swinging the sock around for about 10 minutes and hit everything in the cell. C.D. was intimidated by his conduct. C.D. gathered his possessions and waited on his top bunk to be moved to another cell.

Defendant and C.D. were allowed to leave their cell for "pill call." C.D. testified he went to Officer Look and again said he had to get out of his cell. C.D. told Look that he was scared because defendant was swinging around a cup in a sock. Defendant was standing behind C.D. and heard his complaint.

C.D. testified Officer Look asked defendant if he was going to hurt C.D. Defendant shrugged his shoulders. Look asked C.D. if he could return to the cell for a little while longer. C.D. told Look that he was "pretty sure" defendant was going to hurt him. Look asked defendant and C.D. if they could be okay for a couple of hours, and then he would move C.D.. Defendant said yes. C.D.'s testimony about the physical and sexual assaults

C.D. went back to the cell, sat on the top bunk with his possessions, and waited to be moved.

Defendant again covered the windows on the cell door. After about 10 minutes, defendant told C.D. that he did not like being snitched on about swinging around the cup in the sock. C.D. testified defendant again swung the sock, and this time he hit C.D. in the face and hands. C.D. tried to punch defendant but never hit him.⁶

6 On cross-examination, C.D. admitted he also placed his own state-issued plastic cup in a sock and swung it at defendant to protect himself, and that he failed to mention that in his direct examination testimony.

Defendant screamed for help, but the cell door was closed, and no one responded. C.D. was hit in the face by the sock and the cup, fell to his side, and testified he briefly lost consciousness.

When C.D. woke up, defendant asked if he had to keep beating him, or if he would shut up. Defendant said he was serving a life sentence and had nothing else to do.⁷ C.D. said he would give defendant whatever he wanted to stop beating him and promised not to tell on him.

7 Defendant was serving a seven-year term at the time of the incident.

C.D. testified defendant said that was not enough, and demanded C.D. engage in sexual acts with him. C.D. refused and falsely claimed he had HIV to discourage defendant. Defendant threatened to hit him again. C.D. tried to stall defendant. However, defendant grabbed C.D., forced him to his knees, and threatened to kill him if he did not cooperate. C.D. testified he stopped resisting because he was afraid defendant was going to kill him.

C.D. testified defendant forcibly performed an act of sodomy on him. C.D. testified the sexual act was not consensual, and he did not resist because he was afraid defendant was going to kill him. After defendant finished, C.D. got back on the top bunk.

C.D. testified he never used a racial slur against defendant during the incident.

An inmate "porter" knocked on the door, and defendant removed the covers on the windows. Defendant told the porter that he beat C.D. because he had snitched on defendant. C.D. reports the assault

About an hour later, the cell door opened, and C.D. grabbed his property and left. Officer Look told C.D. where his new cell was located. C.D. testified Look saw the injuries on his face and asked what happened. C.D. replied, "What do you think happened?" C.D. did not provide any details.

C.D. testified he was escorted to his new cell and saw Erik Herrera, a prison social worker. C.D. approached Herrera, asked for help, and told Herrera he had been raped. Herrera escorted C.D. into an office where they could privately talk. C.D.'s initial statement

Mr. Herrera, the prison social worker, testified C.D. contacted him and said he had been raped. Herrera advised correctional officers, and they escorted C.D. into an office for a confidential interview. Officer Look was not present. Herrera testified that C.D. reported defendant hit him in the face with a sock that had contained the state-issued cup, he lost consciousness, defendant threatened him, and defendant committed forcible sodomy on him. Herrera testified C.D. cried as he told the story. The prison nurse

The prison nurse testified she examined C.D. and he had bruises, scratches, and abrasions on his chest and knuckles. There was blood in his boxer shorts. The prison nurse testified C.D. was withdrawn and upset and did not make any comments about what happened.

The prison nurse also examined defendant, and he did not have any visible injuries. Hospital examination

C.D. was taken to Bakersfield Memorial Hospital for a sexual assault examination. Karen Baughman, the nurse who conducted the examination, testified C.D. had "slight" bleeding in his rectal area that could be consistent with either consensual or nonconsensual sodomy. He also had a red mark on his shoulder, pain in his shoulder and chest, two round red areas on his back, a small laceration on the left side of his back, multiple lacerations to his fingers, a cut on his cheek below his left eye, and bleeding and swelling around his left eye.

Ms. Baughman testified C.D. was cooperative and crying during the examination. C.D. reported the assailant performed an act of forcible sodomy on him. C.D. said the assailant used a plastic cup inside a sock as a weapon, and hit him in the face, hands, shoulder, ribs, and knees. C.D. said he resisted, and the man grabbed his arms, threatened him, and said he might accidentally kill him.

Based on DNA samples taken from defendant and C.D., the prosecution introduced evidence that defendant could not be excluded as the source of DNA on a rectal swab taken from C.D., and samples from his boxer shorts.

C.D. testified that as a result of defendant's physical and sexual assaults, he suffered a chipped bone in his wrist, a swollen right eye, bruises on his right side, and anal bleeding for two or three days.⁸ He also suffered from a headache, dizziness, and a lot of pain. Defendant's prior assault

8 On cross-examination, C.D. conceded that he already had problems and "a little click" in his wrist before the incident.

The prosecution introduced evidence that on December 21, 2010, defendant and Inmate Hinson were involved in a fight, and defendant swung at and hit Hinson with a cup inside a sock. Hinson suffered redness on his face, neck, chest, back, and arms, and a laceration to right eyebrow that required stitches.

DEFENSE EVIDENCE

Officer Look

Correctional Officer Look, who had worked for the prison system for nearly 20 years, was called as a defense witness and testified C.D. approached him around 6:45 a.m. on March 6, 2014, and asked for a cell change. Look had never spoken to C.D. before that time, and C.D. had not previously asked him for a cell change.

Officer Look asked why he wanted to change cells. C.D. said he was not getting along with defendant and their lifestyles were different. Look told C.D. to have breakfast and then talk to him again.

Approximately 30 minutes later, both C.D. and defendant approached Officer Look. C.D. again said he was not getting along with defendant and asked to move out of the cell. Look asked what was going on. Defendant said there were no problems and it was okay for C.D. to stay in the cell.

Officer Look testified he determined there should be a cell change since C.D. said they were not getting along. Look asked defendant and C.D. if they could go back to the cell and wait for the request to be processed. They both agreed and returned to their cell. C.D. never said he was afraid of defendant.

At 8:15 a.m., Officer Look filed the request for C.D. to change cells.

Around 9:30 a.m., Officer Look went to the cell and spoke to both defendant and C.D. through the door. Defendant was sitting on the bottom bunk and C.D. was on the top bunk. Look said he requested the move and told C.D. to pack his property and get ready.

Around 10:30 a.m., Officer Look again went to their cell and told C.D. his move request had not yet been approved. Defendant and C.D. were in the same places on their respective bunks.

Officer Look testified that later that day, Mr. Herrera told him that C.D. reported he had been beaten and raped. Look was not present when C.D. reported the incident to Herrera and other correctional officers.

Officer Look testified C.D. never told him that he was afraid he was going to be hurt or raped if he was not moved out of that cell. Look would have taken action and immediately moved C.D. if he thought he was in danger.

Officer Look testified that prior to trial, he had a telephone conversation with the prosecutor. He felt uncomfortable because the prosecutor yelled and screamed at him and accused him of lying. Defendant's trial testimony

Defendant testified that he had been in prison for the last 17 years. He had prior convictions for selling controlled substances in 2013, spousal abuse in 2013, and criminal threats in 2016.⁹

9 Defendant testified he had a prior conviction for criminal threats, but that offense does not appear in the probation report.

Defendant shared a cell with C.D. for about one week prior to the incident in this case and they talked a lot. C.D. asked defendant if he would perform sexual acts with him in exchange for his canteen money. Defendant agreed, and testified he performed acts of sodomy on C.D. nearly every night they shared the cell. C.D. initiated the sexual acts, and the conduct was always consensual. Defendant considered the arrangement a business deal and not a relationship.

Defendant testified that on March 5, 2014, he had a disagreement with C.D. about the cardboard placards that defendant placed over the cell door's windows. A correctional officer told C.D. to take them down, C.D. told the officer that defendant insisted on putting them up, and the officer said she was going to write up defendant. Defendant told C.D. to get out of his cell. C.D. said he had already talked to an officer about changing cells.

Defendant testified that on March 6, 2014, he was standing behind C.D. during "pill call," and C.D. asked Officer Look if he could change cells. C.D. never said he was afraid of defendant. C.D. only said defendant was weird and they were not getting along. Look asked defendant if he was going to do something to C.D. Defendant shrugged his shoulders. Look told them to return to their cell and ordered C.D. to pack his belongings, and defendant agreed.

Defendant testified they went back to their cell and waited for C.D. to move. C.D. suggested they engage in one more sexual act. Defendant agreed, and he performed another consensual act of sodomy on C.D.

After they finished, C.D. gathered his property to move. Defendant testified he saw some of his own property among C.D.'s possessions. Defendant confronted C.D. about stealing his things. C.D. replied by cursing defendant and repeatedly using a racial slur.

Defendant testified he became angry because C.D. stole his stuff and called him a racial slur. Defendant admitted he put the cup in a sock and beat C.D. with it. Defendant admitted he also threatened to kill C.D. Defendant insisted he would never rape another inmate but readily admitted beating and threatening C.D. C.D. yelled and screamed as defendant beat him. An inmate porter stopped by the cell and asked what was going on. Defendant told the porter that he beat C.D., and he had to get out of there.

Defendant testified he was guilty of beating and threatening C.D., but he did not rape him. When defendant was interviewed by correctional officers about the incident, however, he lied about everything, claimed they never had sex, and denied beating C.D. Defendant did not report that he had consensual sex with C.D. or admit that he beat him up because he did not want to cooperate with the officers.

PROCEDURAL HISTORY

Defendant was charged with count 1, sodomy by means of force or violence (§ 286, subd. (c)(2)(A)), and count 2, sodomy by threat of retaliation (§ 286, subd. (c)(3)).

As to counts 1 and 2, it was alleged that defendant personally inflicted great bodily injury on the victim within the meaning of section 667.61, subdivision (d)(6); and he personally used a deadly or dangerous weapon within the meaning of section 667.61, subdivision (e)(3).

Based on the special allegations attached to counts 1 and 2, defendant faced a term of 25 years to life on each count if the jury convicted him and found the great bodily injury enhancements true under section 667.61, subdivisions (a), (c)(6), and (d)(6). In the alternative, he faced a term of 15 years to life on each count if he was convicted and the jury instead only found the deadly weapon enhancements true under section 667.61, subdivisions (b), (c)(6), and (e)(3).¹⁰

10 Both counts 1 and 2 otherwise carry determinate terms of three, six or eight years.

Defendant was also charged with count 3, assault with a deadly weapon, a cup inside of a sock, committed by a person confined in state prison (§ 4501); and count 4, criminal threats (§ 422).

As to counts 3 and 4, it was alleged defendant personally inflicted great bodily injury on the victim (§ 12022.7). As to count 4, it was alleged he personally used a deadly or dangerous weapon, the cup inside of a sock (§ 12022, subd. (b)(1)).

As to all counts, it was alleged defendant had one prior strike conviction, one prior serious felony enhancement (§ 667, subd. (a)), and two prior prison term enhancements (§ 667.5, subd. (b)). Verdict and sentence

On October 25, 2017, defendant's jury trial began.

On November 14, 2017, the jury found defendant not guilty of both count 1, sodomy by means of force or violence; and count 2, sodomy by threat of retaliation, and obviously did not reach the special allegations which had carried the possible life terms.

The jury found defendant guilty of count 3, assault with a deadly weapon by a person confined in state prison; and count 4, criminal threats with a deadly weapon enhancement true for count 4. It found the great bodily injury enhancements not true for counts 3 and 4.

The court found the prior conviction allegations true.

THE PROBATION REPORT

Defendant's primary appellate contentions are that the probation report contained numerous mistakes, the report's factual statement was inconsistent with the trial evidence, and the report's sentence recommendations were based on these mistakes. We thus extensively review the contents of the probation report.

On December 17, 2017, the probation report was filed with the superior court. It correctly stated that defendant had been charged with the two sodomy charges in count 1, violation of section 286, subdivision (c)(2)(A), and count 2, violation of section 286, subdivision (c)(3); and that he was also charged with count 3, assault with a deadly by a person confined in state prison in violation of section 4501; and count 4, criminal threats in violation of section 422; plus great bodily injury enhancements, a deadly weapon enhancement, and the prior conviction allegations.

The probation report also correctly stated that on November 14, 2017, defendant was acquitted of counts 1 and 2; convicted of count 3 and 4 with the deadly weapon enhancement; and the great bodily injury enhancements for counts 3 and 4 were found not true. Defendant's record

According to the probation report, defendant (born 1988) had juvenile adjudications for the following violations: sections 245(a)(1)/17, assault with a deadly weapon in 2002, and placed on probation; section 459, burglary in 2002, which resulted in a probation violation, and he was placed in the California Youth Authority; section 245(a)(1), assault with a deadly weapon in 2002, and he was continued on probation; sections 242/243(a), misdemeanor battery in 2005, and he was again continued on probation; and section 243.1, felony battery of a custodial officer in 2005, and again continued on probation.

Defendant's convictions as an adult began in 2007, when he was convicted of violating former section 12031, subdivision (a)(1), carrying a loaded firearm in a public place, and placed on felony probation. In 2008, he was convicted of violating section 487, subdivision (c), grand theft from a person, sentenced to two years in prison, and paroled in 2009. In 2010, he was convicted of violating section 245, subdivision (a)(1), assault with a deadly weapon, sentenced to two years in prison, and paroled in 2011. In 2013, he was convicted of violating Health and Safety Code section 11351, possession of a controlled substance for sale, and placed on felony probation for three years. In 2014, he violated probation and was sentenced to three years in prison.

At the time of the charged offenses, defendant was serving seven years in prison after being convicted in 2014 in Los Angeles Superior Court case No. VA131353-01, for violating section 273.5, willful infliction of corporal injury on a spouse or cohabitant, with a prior strike conviction and a prior prison term enhancement. Summary of facts

In the "Personal History" section of the probation report, it stated that defendant was not interviewed because he was in prison, and "because of time constraints and work load, the interview could not be completed."¹¹ Defendant's personal history, description, and birthdate were taken from a prior probation report.

11 On appeal, defendant concedes that the probation officer was not required to interview him but argues the failure to do so prevented the officer from developing possible mitigating circumstances based on defendant's trial testimony about the reasons he assaulted and threatened C.D.

In the section entitled, "Circumstances of the Present Offense," the probation report stated:

"It should be noted that the undersigned did not have access to the jury trial transcripts at the time of the dictation of this report. Consequently, it is possible that additional and or conflicting information was developed during the course of the trial that would contradict the summary offered. It is with these thoughts in mind the following summary is offered.

"The following is a summary of a report completed by the California Department of Corrections and Rehabilitation."

The probation report then stated an account of the charged offenses that was apparently based on the pretrial investigative reports and generally consistent with C.D.'s trial testimony - defendant physically assaulted him, threatened him, and performed forcible acts of sodomy on him.

The report further stated that defendant was questioned by correctional officers about the incident, and he said C.D. falsely accused him of assaulting him. The report did not recount defendant's trial testimony, that they engaged in consensual sexual acts, and defendant's admissions that he physically assaulted and threatened C.D. because he stole his possessions and made racial slurs.¹² Aggravating circumstances and ineligibility for probation

12 Also, on appeal, defendant cites the probation report's reliance on pretrial investigative statements for the factual summary and argues the summary was erroneous because it was not consistent with the trial evidence and defendant's acquittal on the sexual assault charges.

The probation report stated there were no mitigating circumstances, and listed the following aggravating circumstances: (1) defendant's prior convictions as an adult were numerous; (2) his prior performance on juvenile and felony probation and parole was unsatisfactory; and (3) he had engaged in violent conduct which indicated a serious danger to society "as evidenced by prior adjudications or convictions for PC 245(a)(1)/17, PC 245(a)(1); PC 243.1, PC 242/243(a); PC 245(a)(1), PC 273.5 and the present offense PC 4501 and PC 422."¹³ (Italics added.)

13 As already summarized above, defendant had juvenile adjudications for assault with a deadly weapon ("PC 245(a)(1)/17"), battery of a custodial officer ("PC 243.1"), and battery ("PC 242/243(a)"); and felony convictions for assault with a deadly weapon ("PC 245(a)(1)") corporal injury to a spouse/cohabitant ("PC 273.5"); and the present offenses in this case for assault with a deadly weapon by a person confined in state prison ("PC 4501) and criminal threats ("PC 422").

The probation report stated defendant was statutorily ineligible for probation under section 667, subdivision (c)(2) because of his prior strike conviction; separately ineligible for probation under section 1203, subdivision (e)(2) except in unusual circumstances because of the deadly weapon enhancement; there were no unusual circumstances; and he was considered "absolutely unsuitable" for probation because of his prior record and "the circumstances of his present offense." Calculation of sentence

The probation report, at page nine, stated the upper term was justified and recommended based on the aggravating circumstances; and "the sentencing triad as to Counts Three and Four will be doubled" because of his prior strike conviction.¹⁴ (Italics added.)

14 As we will address below, defendant contends the matter must be remanded for a new probation report and sentencing hearing, because the report calculated his sentence based on the erroneous belief that he was convicted of counts 1 and 2, the forcible sodomy charges of which he was acquitted. In this section, however, the report correctly stated that he was convicted of count 3, assault with a deadly weapon by a person confined in state prison, and count 4, criminal threats. As we will also explain, it is clear from the record that the court did not impose the sentences in this case based on the acquitted counts.

The probation report set forth the recommended sentence at page 10:

"As to Count One the upper term of 12 years will be recommended. It will be further recommended the sentence be enhanced by five years pursuant to the true finding of PC 667(a). It will further be recommended the sentence be enhanced by one year pursuant to the true finding of PC 667.5(b). Although two enhancements pursuant to PC 667.5(b) were found to be true, one of the enhancements is the same case as was used to allege the PC 667(a) enhancement. Since the greatest of these two terms shall apply, the PC 667(a) enhancement will be used and only one of the PC 667.5(b) enhancements will be applied.

"As to Count Four, consecutive sentence is fully recommended."¹⁵ (Italics added.)

15 The probation report's reference to "count 1" is one of the errors raised by defendant on appeal. As already explained, the jury found defendant not guilty of counts 1 and 2, the forcible sodomy charges; and guilty of count 3, assault with a deadly weapon by a person confined in state prison in violation of section 4501; and count 4, criminal threats in violation of section 422 with the deadly weapon enhancement.
The report at page 10 recommended the second strike upper term of 12 years for "Count One" which was the forcible sodomy charge that he was acquitted of. The triad for a violation of section 286, subdivision (c)(2)(A) as alleged in count 1 is three, six or eight years (in the absence of the life enhancements). A second strike upper term for that offense would be 16 years.
The triad for defendant's conviction in count 3 for violating section 4501, subdivision (a), is two, four or six years; the second strike triad would be four, eight, or 12 years. Thus, the report's recommendation for the second strike upper term of 12 years is consistent for the sentence for defendant's conviction in count 3, a violation of section 4501, subdivision (a), and the report's recommendation was not erroneously based on the offense for which he was acquitted in count 1.

The probation report recommended consecutive sentences because "the crimes and their objectives were predominately independent of each other, and the crimes involved separate acts of violence or threats of violence."

At page 10, the probation report continued with the sentence calculation for defendant's second conviction:

"It will further be recommended Count Two be enhanced by one year pursuant to the true finding of PC 12022(b)(1). Therefore, it will be recommended the defendant be sentenced to 19 years, eight months in state prison." (Italics added.)

The report stated the term should be served consecutively to the sentence defendant was already serving.

At page 11, the probation report summarized the sentencing recommendation and stated that for "Count Three: PC 4501 w/PC 667(e)," the second strike triad was 4, 8, or 12 years; the court should impose the base term of 12 years, plus five years for the section 667, subdivision (a) prior serious felony enhancement and one year for the section 667.5, subdivision (b) prior prison term enhancement.

Also on page 11, the report stated that for "Count Four: PC 422," the sentencing triad for a second strike term was 32 months, four years, or six years¹⁶; the base term should be the upper term of six years, but the court should impose a consecutive sentence of one year eight months, representing one-third the midterm of four years; plus the term for the section 12022, subdivision (b)(1) enhancement; for an aggregate term of 19 years eight months. "Recommendation"

16 Defendant also cites the probation report's reference to count 2 as another error which requires remand for preparation of a new report. The triad for the offense alleged in count 2, a violation of section 286, subdivision (c)(3), is three, six or eight years. The second strike triad is six, 12, or 16 years, and one-third the second strike midterm would be four years.
In contrast, the triad for defendant's felony conviction in count 4 for violating section 422 is 16 months, two years, or three years (§ 1170, subd. (h); § 18). A second strike triad is 32 months, four years, or six years, and one-third the second strike midterm is 16 months. Thus, the probation report's recommendation for the midterm of 16 months is consistent with defendant's conviction in count 4 for violating section 422 and is not based on the charge for which he was acquitted in count 2.

The final section of the report, "Recommendation" at page 11, summarized the aggregate sentence. It stated that for "Count Three: PC 4501 w/ 667(e)," the recommendation was for the upper second strike term of 12 years, plus five years for the section 667, subdivision (a) enhancement and one year for the section 667.5, subdivision (b) enhancement.

On page 12, the report recommended for "Count Four: PC 422 w/PC 667(e)," a consecutive terms of "16 months (one-third the midterm)" plus "four months (one-third the term)" of one year for the section 12022, subdivision (b)(1) enhancement, for an aggregate term of 19 years eight months, to be served fully consecutive to the sentence he was already serving in Los Angeles Superior Court case No. VA131353-01.

SENTENCING HEARING

Defendant did not file a sentencing statement or a formal motion to dismiss the prior strike conviction.

On December 21, 2017, Judge McNamara, who presided over the entirety of defendant's jury trial, conducted the sentencing hearing.

Mr. Cadman, defense counsel, objected to the probation report and said there were several mistakes. First, counsel pointed out that on page 10, the report recommended a sentence for "count 1" even though defendant was acquitted of the forcible sodomy charge alleged in that count. Defense counsel stated:

"Counts 3 and 4, [defendant] took the stand and said, 'I'm guilty. So, apparently, there is tremendous confusion here. And the recitation of the facts also implies - I understand probation at least says at page 6, they didn't read the transcripts, but this case was reduced to a one-sided fight

and some threats where the guy who was the recipient of the one-sided fight didn't really get hurt. That is what happened in this case. This case was never about the fight, it was about the rape, which 12 of our citizens told us never happened.

"So, when probation makes mistakes like that - I can live with typos. I make typos all the time - but when they assume that Counts 1 and 2 need to have sentencing, and then mishmash all the numbers together, I have zero confidence in this report.

"Further, I have to agree with probation that he's not a candidate - it's not a special circumstances case. He beat somebody up and he threatened somebody. But to suggest that the upper term on the case in which he was acquitted of all the major life incidences is another failure by probation to understand what this case was all about.

"Mr. C.D. didn't get hurt. And the jury agreed, he didn't get hurt. He had a black eye. And defense witnesses confirmed, he wasn't really hurt, either.

"So, what I think should happen is, should [defendant] get straight probation?

"Of course not. He's not a candidate for that.

"He should get the low term and Romero ¹⁷ on one of his prior strikes, so he does time appropriate for what he did. This is sort of a makeup report done at the last minute, assuming counts that aren't true, and a quick, usual conclusion, upper term.

"I will submit and ask for the low term of count 3, with a Romero, and one-third the midterm on count 4, for low term." (Italics added.)

The court's statements about the errors in the probation report

17 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

The court responded to defense counsel's objections about the probation report:

"In fairness to you, you bring up good points. I had them noted here when I read it. I put some back and forth. It does say that on page 10, line 1 [about counts 1 and 2] as pointed out correctly. ... I just substituted it for counts 3 and 4 for the same analysis given the facts, and the next page all ties together.

"So, with that in mind, as to your comment, I do agree with part of it. No fault of probation. They don't get .... the transcript, and they have to go off of what they get, given the times. So, within that circumstance of the present case, certainly explains what was put forward and not necessarily what happened. So, I don't dispute anything of what you are saying there. The court didn't find the same issues in terms of the mix up as to counts 3 and 4 versus counts 1 and 2. I just treated them as typos. Your input is as good as mine in that respect. I made the connection. But in terms of analysis as to what probation said, I treated it as counts 3 and 4." (Italics added.)

The court stated that it was going to correct the probation report's errors. Defendant's request to dismiss the prior strike conviction

The court asked if defense counsel was going to make an oral motion to dismiss the prior strike conviction under Romero. Defense counsel said yes and argued defendant did not fall within the spirit of the "Three Strikes" law based on the facts that were found true by the jury. While he had a long prison record, his prior strike conviction was from 2013. As for the convictions in this case, the trial evidence showed C.D. was beaten because he used a racial slur against defendant, the jury found C.D. did not suffer great bodily injury, and the jury acquitted defendant of the more serious sexual assault charges that carried life terms.

The prosecutor replied the prior strike conviction should not be dismissed based on defendant's lengthy and violent record, the two felony convictions that he was convicted of in this case, and the deadly weapon enhancement that was found true. The prosecutor noted defendant had another strike conviction that could not be alleged in this case.

The prosecutor further requested the maximum aggregate term of 19 years eight months, as recommended in the probation report, "based on the fact that the defendant has already been able to avoid three strike sentencing, although, based on his conduct, he should be receiving that."

Defense counsel replied the court should not impose the maximum upper term "where a person is charged with a life offense of rape and beats it all and admits that he got into a fight with a guy that called him [a racial slur] and didn't really hurt him," just because "somehow somebody somewhere is not happy about the result of the life counts."¹⁸ Counsel argued the case would have settled for a lesser term if the sexual assault charges had not been filed, and it was only fair to impose the lower term and dismiss the prior strike conviction since defendant was acquitted of the most egregious conduct. The court's sentencing orders

18 As explained above, as to counts 1 and 2, defendant faced possible life terms if he was convicted and the jury found true either the great bodily injury or deadly weapon enhancements alleged under section 667.61.

After hearing the parties' arguments, the court denied defendant's request to dismiss the prior strike conviction.¹⁹

19 We are quoting the entirety of the court's findings at the sentencing hearing given the nature of defendant's appellate issues.

"So, I considered the oral motion presented by the defense and in response by the prosecution. In addition, I considered the current charges against the defendant, and the defendant's criminal record, particularly, the criminal record, the defendant's background, character and prospects in the interests of justice, given all of that, and the court is very aware of what happened at trial in terms of the evidence that did come out, so it has considered everything in this case. [¶] The court does find that the defendant is not outside the spirit of the three strikes law and denies the defense motion in that regard." (Italics added.)

The court asked defense counsel if he waived reading the charges and arraignment, and counsel said yes. The court then turned to the probation report and sentencing:

"With that, let me go to page 9 [of the probation report], first. Again, thank you for the follow up by Mr. Cadman. As to page 10, line 1, by interlineation, it should read as to count 3, line 1 and as to - between

[lines] 15 and 16, it's further recommended, count 4. It's got 4. That should be, count 4 instead of count 2. The court did consider it with these interlineations being considered by the court.

"In addition to that, page 9, as stated by defense counsel, but agreed, defendant does qualify for punishment in the California Department of Corrections. The court does find, he's ineligible for grant of felony probation. And based on the circumstances, coupled with the defendant's prior criminal record, absolutely unsuitable for a grant of felony probation.

"With that in mind, the court has reviewed and considered the probation presentencing report, nature of the disposition, factors in aggravation/mitigation, and I will do it by reference, Mr. Cadman, some of your comments, I'll put in there as to what the court finds in this case. It does find the upper term to be appropriate in this case and will sentence as follows.

"As to count 3, violation of Penal Code section 4501, with a violation of Penal Code section 667(e), probation is denied. The defendant is sentenced to the Department of Corrections for the upper term of 12 years; said sentence to be enhanced by five years pursuant to section 667(a) of the Penal Code; said sentence to be further enhanced by one year pursuant to section 667.5(b) ...." (Italics added.)

The court next addressed count 4:

"As to count 4, violation of Penal Code [section] 422, with Penal Code [section] 667(e), probation is denied. The defendant is sentenced ... for the term of 16 months, one-third of the midterm; said sentence to be enhanced by four months, one-third of the midterm pursuant to section 12022(b)...; said sentence to be served consecutive to the sentence imposed to count 3 for a total fixed term of 19 years, eight months."

The court ordered the term to be served consecutively to the sentence that defendant was already serving.

The court also imposed a restitution fine of $300 (§ 1202.4), stayed the parole revocation fine of $300 (§ 1202.45), and left open victim restitution if requested. It imposed court operations assessments of $80 (§ 1465.8) and criminal conviction assessments of $60 (Gov. Code, § 70373).

DISCUSSION

I. The Probation Report

Defendant requests reversal of his sentence and remand for preparation of a new probation report and a new sentencing hearing, with directions for the court to impose concurrent terms for counts 3 and 4.

We begin with defendant's argument that his due process rights were violated by the court's reliance on a probation report that contained material errors. Defendant asserts that a new probation report must be prepared because (1) the factual summary erroneously relied on pretrial investigative reports and C.D.'s claims that he was sexually assaulted, and failed to include defendant's trial testimony that the sexual acts were consensual, and also failed to state that the jury did not believe C.D.'s trial testimony since it found defendant not guilty of the sexual assault charges; (2) the probation report erroneously calculated his recommended sentence by using counts 1 and 2, the forcible sodomy charges that he was acquitted of; and (3) the probation report was incomplete because the probation officer found no mitigating circumstances and failed to interview defendant because of alleged " 'time constraints and work load,' " concedes there is no statutory requirement for such an interview, but asserts the probation officer could have developed mitigating circumstances if the officer talked to defendant, learned about his trial testimony, and reported the physical assault resulted from a disagreement about stolen property and racial slurs, and was not the result of a forcible sexual assault.

A. Due process

The United States Supreme Court has "sustained due process objections to sentences imposed on the basis of 'misinformation of constitutional magnitude.' [Citations.]" (Roberts v. United States (1980) 445 U.S. 552, 556.) "Although not all the procedural safeguards required at trial also apply in a sentencing or probation hearing, such a hearing violates due process if it is fundamentally unfair. [Citation.] 'Reliability of the information considered by the court is the key issue in determining fundamental fairness' in this context. [Citation.] A court's reliance, in its sentencing and probation decisions, on factually erroneous sentencing reports or other incorrect or unreliable information can constitute a denial of due process." (People v. Eckley (2004) 123 Cal.App.4th 1072, 1080 (Eckley).) However, "[t]he mere presence of erroneous sentencing information in the record does not require reversal; such information because constitutionally significant only if the sentencing court relies upon it. [Citations.]" (People v. Tang (1997) 54 Cal.App.4th 669, 678.)

"[W]hen a trial judge relies on materially false or unreliable information in sentencing, the defendant's due process rights are violated. [Citation.] A defendant challenging information used in sentencing must show such information is (1) false or unreliable, and (2) demonstrably made the basis for the sentence. [Citation.]" (United States v. Messer (9th Cir. 1986) 785 F.2d 832, 834; United States v. Petri (9th Cir. 2013) 731 F.3d 833, 838.)

In United States v. Tucker (1972) 404 U.S. 443, "the sentencing judge gave specific consideration to [Tucker's] previous convictions before imposing sentence upon him" even though "two of those convictions were wholly unconstitutional" because of the denial of his right to counsel under Gideon v. Wainwright (1963) 372 U.S. 335. (Tucker, supra, 404 U.S. at pp. 447, 444-449, fns. omitted.) Tucker held that resentencing was required because the defendant's sentence was "founded at least in part upon misinformation of constitutional magnitude." (Id. at p. 447.)

In Townsend v. Burke (1948) 334 U.S. 736, the petitioner was not represented by counsel when he pleaded guilty to robbery and burglary charges. (Id. at p. 737.) The court-imposed sentence based on an earlier charge that was dismissed and two charges where he had been found not guilty. (Id. at p. 740.) Townsend granted habeas relief because "while disadvantaged by lack of counsel, this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result, whether caused by carelessness or design, is inconsistent with due process of law, and such a conviction cannot stand." (Id. at pp. 740-741.) "In this case, counsel might not have changed the sentence, but he could have taken steps to see that the conviction and sentence were not predicated on misinformation or misreading of court records, a requirement of fair play which absence of counsel withheld from this prisoner." (Id. at p. 741.)

In United States v. Weston (9th Cir.1971) 448 F.2d 626, the defendant was convicted of possession of heroin. (Id. at p. 627.) The presentence report stated defendant was the chief supplier of heroin to western Washington. The court relied on this statement and imposed a 20-year sentence. (Id. at p. 628.) Weston held the factual basis for this allegation was "almost nil," and relied on Townsend to vacate the sentence and remand for resentencing. (United States v. Weston, at p. 633.) "In Townsend ..., the Supreme Court made it clear that a sentence cannot be predicated on false information. We extend it but little in holding that a sentence cannot be predicated on information of so little value as that here involved. A rational penal system must have some concern for the probable accuracy of the informational inputs in the sentencing process." (Id. at p. 634.)

In Eckley, supra, 123 Cal.App.4th 1072, the defendant was convicted of abusing her children. When the court denied probation and sentenced the defendant to prison, it relied "on sentencing documents (a probation report, two psychological reports, and a letter from a prison administrator) containing material factual misstatements" that were unsupported and contracted by the trial evidence. (Id. at pp. 1074, 1079.) The People did not deny the reports contained statements that were factually incorrect but asserted the trial court "could not have relied on inaccurate information because it struck inaccurate information from the probation report at [the] defendant's request. But the record shows that the stricken portions have nothing to do with the inaccuracies [the] defendant has pointed out in this appeal." (Id. at p. 1081.)

Eckley relied on Townsend, Tucker, and Weston, and held "the inaccuracies in the four sentencing documents require that the sentence and denial of probation be vacated." (Eckley, supra, 123 Cal.App.4th at p. 1081.) A new sentencing hearing was required because the incorrect claims "exaggerated the defendant's callousness," and the trial court relied on those statements and "emphasized [the] defendant's callousness" when it imposed the prison sentence. (Ibid.)

B. Analysis

Defendant relies on Eckley and argues the probation report contained material errors in violation of due process rights, and the matter must be remanded for preparation of a new report and sentencing hearing. However, the matter need not be remanded for a new probation report for the following reasons.

1. The Factual Summary

First, while the factual summary is based on pretrial investigative reports, the sentencing hearing was conducted by the same judge who presided over the jury trial, and he stated that he was well aware of the evidence introduced at that trial. There is no evidence that the court-imposed sentence based on the erroneous belief that defendant was convicted of the forcible sodomy charges.

2. Failure to Interview Defendant/Mitigating Circumstances

Second, defendant concedes there is no requirement in the statutes or court rules for the probation officer to personally interview defendant. Nevertheless, defendant argues that if the probation officer had interviewed him, the officer could have developed mitigating circumstances consistent with defendant's trial testimony that he did not perform forcible sexual acts on C.D., they had consensual sex, and the physical assault occurred because C.D. stole his property and used a racial slur.

California Rules of Court, rule 4.423(a) defines mitigating circumstances relating to the crime. There are only two circumstances that arguably could have applied based on defendant's trial testimony: that defendant believed that he had a claim or right to property taken; and the defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse, was the defendant's spouse, intimate cohabitant, or parent of the defendant's child; and the abuse does not amount to a defense.

Rules of Court, rule 4.423(b) states mitigating circumstances relating to the defendant, none of which applies to defendant's circumstances given his lengthy prior record, ineligibility for probation, and failure to acknowledge wrongdoing at an early stage. Finally, Rules of Court, rule 4.423(c) includes as mitigating circumstances "any other factors statutorily declared to be circumstances in mitigation or that reasonably relate to the defendant or the circumstances under which the crime was committed."

As applied to this case, the trial court was well aware of the evidence that was introduced at the jury trial and the verdicts that acquitted defendant of the forcible sexual assaults. Based on the entirety of the record, there were no mitigating factors relating to defendant under Rules of Court, rule 4.423(b) given his lengthy prior record, his prior poor performance on probation, he did not voluntarily acknowledge wrongdoing before arrest or at an early stage, he was ineligible for probation, and even defense counsel conceded he should not receive probation. As for Rules of Court, rule 4.423(a)'s list of mitigating factors relating to the crime, defendant was certainly not a passive participant in the assault and threats, he was not induced by others to commit the crimes, and he did not engage in the criminal conduct because of coercion, duress, or necessity.

More importantly, defendant's trial testimony that he assaulted C.D. with an object found to be a deadly weapon, and threatened C.D., because he believed C.D. stole his property and was upset he used a racial slur, would not constitute mitigating circumstances or provocation under Rules of Court, rule 4.423(a). Defendant admitted that he knew C.D. was about to be moved from the cell, and they were waiting for a correctional officer to arrive and escort C.D. out of the cell. Defendant did not offer any explanation as to why he felt compelled to assault C.D. instead of waiting for the imminent arrival of an officer to address C.D.'s theft of his property.

3. The Sentencing Calculations and Recommendations

Finally, we find that the probation report's erroneous references to counts 1 and 2 did not affect the sentencing recommendations.

The probation report correctly stated the charged offenses, and that the jury had acquitted defendant of the sexual assault charges alleged in counts 1 and 2 and convicted him of assault with a deadly weapon and criminal threats in counts 3 and 4. In summarizing his prior criminal record, the report expressly refers to his current convictions in this case, and correctly cites violations of section 4501 and section 422.

The initial sentencing calculation on page 10 contains the one erroneous reference to "count 1" but, as explained above, the mathematical calculation was clearly based on the sentencing triad for a violation of section 4501, consistent with defendant's conviction in count 3 for assault with a deadly weapon by a person confined in state prison. It was completely inconsistent with the determinate sentencing triad for a conviction of section 286, subdivision (c)(2)(A)), as alleged in count 1, that defendant was acquitted of.

The same is true for the probation report's single erroneous reference to "count 2" on page 10. Again, the actual mathematical calculation was correctly based on the sentencing triad for a violation of section 422, consistent with defendant's conviction for criminal threats in count 4. It was completely inconsistent with the determinate sentencing triad for a conviction of section 286, subdivision (c)(3), as alleged in count 2, that defendant was acquitted of.

Aside from these two references to counts 1 and 2, the probation report correctly calculated defendant's sentence based on his convictions for count 3, assault with a deadly weapon and count 4, criminal threats. There are no references or calculations in the report based on the offenses that he was found not guilty of - the forcible sexual assault charges alleged in counts 1 and 2, or the section 667.61 enhancements that carried the life terms for those charges.

We thus conclude the trial court did not rely on any erroneous information contained in the probation report. (People v. Tang, supra, 54 Cal.App.4th at p. 680.) In contrast to Eckley and the case cited therein, the court stated it was well aware of the errors even before defense counsel raised his objections. "The judge who sentenced defendant was the same judge who presided over the trial and was thus intimately acquainted with the facts underlying" his convictions. (People v. Dobbins (2005) 127 Cal.App.4th 176, 183.) Defendant's due process rights were not violated, and the trial court properly found the two references to counts 1 and 2 in the probation report were typographical errors. The court stated and acknowledged the trial evidence was different from the report's factual summary, defendant's reasons for assaulting and threatening C.D. would not have been mitigating circumstances, and the report's errors did not affect the sentencing recommendations or calculations.

II. The Court's Sentencing Decisions

Defendant next argues the matter must be remanded for a new sentencing hearing because the court selected the upper term for count 3 and imposed consecutive terms for count 4 and the deadly weapon enhancement, without giving a statement of reasons for its decisions. Defendant asserts the court's failure to state reasons is prejudicial because it may have relied on the probation report's recommendation for consecutive upper terms, and that recommendation was likely based on the report's erroneous factual summary, sentencing calculations, and the probation officer's failure to develop mitigating circumstances, as argued in issue I, ante.

Defendant acknowledges that when the court denied defendant's request to dismiss the prior strike conviction, it stated that it was well aware of the facts that were adduced at the trial and corrected the typographical errors in the probation report. However, defendant argues the court's statements when it denied the Romero motion are insufficient because even if the court did not rely on the erroneous factual summary in the probation report, it still could have engaged in the improper dual use of facts to impose both the upper and consecutive terms.

A. Forfeiture/Ineffective Assistance

We first note that at the sentencing hearing, defense counsel raised several objections about the contents of the probation report as we have addressed in issue I, ante. Defense counsel also urged the court to dismiss the prior strike conviction and impose the lower term. However, counsel did not object when the court selected the upper term for count 3 and imposed consecutive sentences for count 4 and the deadly weapon enhancement without stating reasons for the sentencing decision.

A defendant who does not object to the trial court's failure to give reasons for its sentencing choices, when given a meaningful opportunity to do so, forfeits the claim on appeal. (People v. Boyce (2014) 59 Cal.4th 672, 730-731.) "Had [the defendant] timely and specifically objected below, the trial court presumably would have had an opportunity to correct, and could have corrected, any error. [Citation.]" (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1372, fn. omitted (Ortiz).)

Defendant acknowledges his defense attorney did not object or argue that the court had to state reasons for its sentencing choices. In the alternative, defendant contends counsel was prejudicially ineffective for failing to do so. "To show ineffective assistance, defendant must show that 'counsel's performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.' [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (People v. Woodruff (2018) 5 Cal.5th 697, 761-762.)

We thus turn to the merits of defendant's sentencing contentions to determine if counsel was prejudicially ineffective for failing to object.

B. The Court's Sentencing Discretion

"Section 1170.1 sets forth the sentencing protocol for felony offenses for which a determinate low, middle or upper term of incarceration is imposed. It also sets forth the rules for imposing a consecutive sentence through the designation of 'principal' and 'subordinate' terms. First, the trial court is required to select a base term - either the statutory low, middle or upper term - for each of the crimes. [Citations.] Second, if the court determines that a consecutive sentence is merited, it must designate the crime with the 'greatest' selected base term as the principal term and the other crimes as subordinate terms. [Citation.] Third, the court sentences the defendant to the full base term it selected for the principal term crime and one-third of the middle term for any crimes for which the sentence is ordered to run consecutively. [Citations.] A subordinate term is one-third of the middle term even if the trial court had initially selected the lower or upper term as the base term." (People v. Neely (2009) 176 Cal.App.4th 787, 797-798.)

"Within the limits set forth by the Legislature, a trial court has broad discretion to decide whether to grant probation [citation]; whether to select the upper, middle, or lower term of imprisonment [citations]; whether to run the prison terms on multiple offenses concurrently or consecutively [citations]; whether to stay punishment of one or more offenses [citation]; ... and whether to dismiss one or more offenses or allegations in the interests of justice [citation]." (People v. Clancey (2013) 56 Cal.4th 562, 579.)

The court is required to state reasons on the record for any sentencing choices at the time of sentencing, including the imposition of an upper term and consecutive sentences. (Cal. Rules of Court, rule 4.406(b)(4), (b)(5); § 1170, subd. (c); Ortiz, supra, 208 Cal.App.4th at p. 1371; People v. Sperling (2017) 12 Cal.App.5th 1094, 1103-1104 (Sperling).)

"In exercising his or her discretion in selecting one of the three authorized terms of imprisonment referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing." (Cal. Rules of Court, rule 4.420(b).)

The relevant factors to determine whether to impose consecutive rather than concurrent sentences are whether the crimes and their objectives were predominantly independent of each other; the crimes involved separate acts of violence or threats of violence; the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior, and any circumstances in aggravation or mitigation. (Cal. Rules of Court, rule 4.425(a), (b); People v. Alvarado (2001) 87 Cal.App.4th 178, 194.)

Only a single aggravating factor is required to support the court's selection of an upper term and, similarly, only one factor in aggravation is required to support a consecutive sentence. However, the court may not rely on the same fact to impose both an upper term and a consecutive sentence. (Sperling, supra, 12 Cal.App.5th at pp. 1103-1104; People v. King (2010) 183 Cal.App.4th 1281, 1323-1324; Ortiz, supra, 208 Cal.App.4th at p. 1371; People v. Leon (2010) 181 Cal.App.4th 452, 468-469; People v. Osband (1996) 13 Cal.4th 622, 728-729; Cal. Rules of Court, rule 4.425(b)(1).)

We review the court's decision to impose both an upper term and a consecutive sentence for an abuse of discretion. The court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Sandoval (2007) 41 Cal.4th 825, 847; Sperling, supra, 12 Cal.App.5th at pp. 1102-1104.)

If the court erroneously relied on the same fact to impose both an upper term and a consecutive sentence, the court's dual use of the same fact is harmless if there are other aggravating circumstances that could be relied on. (People v. Osband, supra, 13 Cal.4th at pp. 728-729; People v. Leon, supra, 181 Cal.App.4th at pp. 468-469.)

"Where sentencing error involves the failure to state reasons for making a particular sentencing choice, ... reviewing courts have consistently declined to remand cases where doing so would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence. [Citations.]" (People v. Coelho (2001) 89 Cal.App.5th 861, 889; People v. Gutierrez (1991) 227 Cal.App.3d 1634, 1638.)

C. Analysis

The People concede the court failed to state reasons for selecting the upper term for count 3 and imposing consecutive terms for count 4 and the deadly weapon enhancement. However, we find defense counsel was not prejudicially ineffective when he did not object to the court's failure to state reasons for its sentencing decisions.

While defendant objected to certain sections of the probation report, he never asserted there were any errors in the report's recital of his criminal record. Defendant's record began in 2002, with juvenile adjudications for assault, battery, burglary, and battery of a custodial officer, and a commitment to the California Youth Authority. Defendant's convictions as an adult began in 2007 and included carrying a loaded firearm in a public place, grand theft from a person, assault with a deadly weapon, possession for sale, and willful infliction of corporal injury on a spouse or cohabitant. Defendant's prior performance on probation was poor, he had been committed to the California Youth Authority as a juvenile, he had been sentenced to prison multiple times, and he was obviously in prison when he committed the instant offenses.

Defendant also did not object to the probation report's determination that there were three aggravating circumstances, and those factors are supported by the record: (1) his prior convictions as an adult were numerous; (2) his prior performance on juvenile and felony probation and parole was unsatisfactory; and (3) he had engaged in violent conduct which indicated a serious danger to society "as evidenced by prior adjudications or convictions" for assault with a deadly weapon, battery of a custodial officer, battery, corporal injury to a spouse/cohabitant, and the present convictions in this case for assault with a deadly weapon by a person confined in state prison and criminal threats.

Defendant objected to the probation report's determination that there were no mitigating circumstances. As explained in issue I, ante, defendant argued the probation officer could have developed mitigating circumstances if the officer had interviewed defendant, reported his actual trial testimony, and considered defendant's reasons for assaulting and threatening C.D. were for stealing his property and using a racial slur. Also, as explained in issue I, ante, however, defendant's trial testimony would not have supported any mitigating circumstances in this case.

Defendant argues that while only a single aggravating factor is required to impose either an upper term or consecutive sentences, the court could have improperly relied on the same aggravating factor to impose both the upper term and consecutive sentences. However, the court could have decided to select the upper term by relying solely on the aggravating and undisputed factor that defendant's prior convictions as an adult were numerous. The court could have relied on the separate aggravating circumstance that his prior performance on juvenile and felony probation was unsatisfactory to impose a consecutive sentence. There were thus sufficient aggravating circumstances to avoid any possible dual use of facts, and to support each sentencing choice.

There is thus no reasonable probability the court would have imposed a more lenient sentence if defense counsel had objected to the court's failure to state reasons for imposing the upper term and consecutive sentences, and a new sentencing hearing is not required.

As related to his arguments about the probation report, defendant asserts the court's failure to state reasons for its sentencing choices was prejudicial because it could have relied on the report's sentencing recommendations, which in turn were based on the report's incomplete factual summary and erroneous references to counts 1 and 2, even though he was acquitted of the sexual assault charges. As explained in issue I, ante, however, the entirety of the probation report shows that the single references to "count 1" and "count 2" were typographical errors and mistakenly used in place of count 3 and 4. Except for those single references, the entirety of the probation report correctly stated defendant had been convicted of assault with a deadly weapon by a person confined in state prison and criminal threats, and correctly calculated his recommended sentence based on the triads for section 4501 and section 422. In addition, the court had presided over the jury trial, it expressly stated that it was well aware of the trial evidence and the verdicts in this case, and it did not rely on the probation report's factual summary when it imposed sentence in this case.

We need not remand the matter for a new sentencing hearing because there is no reasonable probability the court would have selected the lower term or imposed a concurrent term for count 4 and the enhancement, if counsel had objected to the court's failure to state reasons for its sentencing choices. (People v. Coelho, supra, 89 Cal.App.4th at p. 889; Sperling, supra, 12 Cal.App.5th at p. 1105.)

III. Section 654

Defendant next argues the terms imposed for count 4, criminal threats, and the deadly weapon enhancement, should be stayed pursuant to section 654 because it was part of the assault in count 3. Defendant asserts that based on his own trial testimony, his conduct in assaulting and threatening C.D., that resulted in his convictions in counts 3 and 4, was based on one overall criminal objective - his angry response to defendant's conduct in stealing his property and using a racial slur.

"Section 654 prohibits multiple punishment for a single criminal act and for two crimes arising from a single indivisible course of conduct in which the defendant had only one criminal intent or objective. [Citation.] Thus: 'If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Conners (2008) 168 Cal.App.4th 443, 458, fn. omitted.)

"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. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] 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. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) "The defendant's intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence. [Citation.]" (People v. Perry (2007) 154 Cal.App.4th 1521, 1525; People v. Harrison (1989) 48 Cal.3d 321, 335.)

As we have discussed, C.D. testified that defendant attacked him with the cup and the sock, knocked him unconscious, and threatened to beat and kill him if he did not submit to the sexual assault. In contrast, defendant testified they had consensual sexual relations, and that he swung the weapon at C.D. and threatened him because C.D. stole his property and repeatedly used a racial slur against him.

Since the jury found defendant not guilty of counts 1 and 2 that were based on the sexual assaults, the verdicts support the inference that the jury rejected C.D.'s account, and that it found defendant's testimony about the incident credible.

Nevertheless, while defendant may have had the same reasons for assaulting and threatening C.D., there is substantial evidence to support an implied finding that he had separate intents and objectives when he committed counts 3 and 4. Defendant's conviction for assault with a deadly weapon was consistent with the conclusion that his intent and objective was to hurt C.D., even though the jury found C.D. did not suffer great bodily injury from the assault.

In contrast, a violation of section 422 for criminal threats does not require the infliction of physical pain, and instead punishes any person "who willfully threatens to commit a crime which will result in death or great bodily injury to another person" with the specific intent that the statement is to be taken as a threat "even if there is no intent of actually carrying it out...." (§ 422, subd. (a).) Thus, defendant did not need to physically assault C.D. to make a criminal threat and did not need to frighten C.D. to commit the assault.

Defendant's focus on the temporal proximity of the two crimes does not change our analysis. "It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.]" (People v. Harrison, supra, 48 Cal.3d at p. 335.) Even though counts 3 and 4 may have occurred in quick succession, substantial evidence supports the trial court's implied finding that defendant's actions were separately motivated by different intents and objectives when he assaulted C.D. with the weapon, and he subsequently threatened to kill him, whether the reason was because of the property theft or previously reporting him for covering up the cell door's windows.

IV. The Prior Prison Term Enhancement

In addition to imposing the upper term and consecutive sentences, the court also imposed a consecutive five-year term for the prior serious felony enhancement (§ 667, subd. (a)) and a consecutive one-year term for the prior prison term enhancement (§ 667.5, subd. (b)).

Defendant contends, and the People concede, that the consecutive one-year term imposed for the prior prison term enhancement must be stricken because of the enactment of Senate Bill No. 136 and the resulting amendments to section 667.5, subdivision (b) that went into effect after defendant's conviction and sentence. The parties further agree those amendments are retroactive and applicable to defendant's case since it is not yet final.

Therefore, the consecutive one-year term imposed in this case under section 667.5, subdivision (b) is stricken.

V. The Prior Serious Felony Enhancement

At the time defendant was charged, convicted, and sentenced, section 667, former subdivision (a)(1), provided, in part:

"In compliance with subdivision (b) of [s]ection 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state ... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately."

Section 1385, subdivision (a) and former subdivision (b) then provided, in part:

"(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed....

"(b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under [s]ection 667."

After defendant was sentenced, but while his case was still pending on appeal, the Legislature enacted Senate Bill No. 1393 (Stats. 2018, ch. 1013, § 1). As of January 1, 2019, section 667, subdivision (a)(1), provides, in pertinent part:

"Any person convicted of a serious felony who previously has been convicted of a serious felony in this state ... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately."

The amendments enacted by Senate Bill No. 1393 deleted former subdivision (b) of section 1385, that prohibiting dismissing the prior serious felony enhancement (Stats. 2018, ch. 1013, § 2, eff. Jan. 1, 2019).

Defendant and the People agree that the enactment of Senate Bill No. 1393 and resulting amendments to section 667, subdivision (a) and section 1385 are retroactive and apply in this case since defendant's case is not yet final. However, the parties disagree as to whether the matter must be remanded for resentencing. Defendant argues remand is required because the court did not have discretion to dismiss the five-year term at the sentencing hearing. The People assert that remand is not necessary because the court's sentencing choices, of the upper term for count 3 and consecutive sentences for count 4 and the deadly weapon enhancement, and the denial of his request to dismiss the prior strike conviction, indicate it is not reasonably likely the court will strike the prior serious felony enhancement.

"We are not required to remand to allow the court to exercise its discretion if 'the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] ... enhancement' even if it had the discretion. [Citation.]" (People v. Jones (2019) 32 Cal.App.5th 267, 272-273.) "The trial court need not have specifically stated at sentencing it would not strike the enhancement if it had the discretion to do so. Rather, we review the trial court's statements and sentencing decisions to infer what its intent would have been. [Citations.]" (Ibid.)

In People v. McVey (2018) 24 Cal.App.5th 405, the court addressed the amendments to the section 12022.53 firearm enhancement resulting from the enactment of Senate Bill No. 620, and held remand was not necessary because "[i]n light of the trial court's express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement, there appears no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement altogether. We therefore conclude that remand in these circumstances would serve no purpose but to squander scarce judicial resources. [Citations.]" (Id. at p. 419.)

In People v. Jones, supra, 32 Cal.App.5th 267, the court declined to remand the matter after the enactment of Senate Bill No. 1393 and the amendments to section 667, subdivision (a), since the sentencing court had already declined to exercise discretion for leniency, and "made clear its intention to impose the most stringent sentence it could justifiably impose. It stated there was no doubt the verdict was correct, defendant's actions were premeditated, dangerous, senseless and absurd, he attempted to kill [the victim] only a few months after being released from prison where he had been for 10 years, and the court took 'great satisfaction' in imposing the 'very lengthy sentence' it imposed. Under these circumstances, we are confident the court would not strike the felony prior and its resulting enhancement out of leniency toward defendant." (People v. Jones, supra, at pp. 274-275.)

In People v. Almanza (2018) 24 Cal.App.5th 1104, the court remanded the matter for resentencing after the amendments to section 12022.53 enacted by Senate Bill No. 620, where there was no clear indication of the court's intent, and held that "speculation about what a trial court might do on remand is not 'clearly indicated' by considering only the original sentence," such as the imposition of consecutive terms. (People v. Almanza, supra, at pp. 1110-1111.)

As for the instant case, we discussed in issue II, ante, that the court did not state reasons when it selected the upper term and consecutive sentences, but we have found the error is not prejudicial because the court's sentencing choices are supported by a separate aggravating circumstance, and the sentence was not based on any errors in the probation report. However, the court declined to exercise its discretion when it denied defendant's request to dismiss the prior strike conviction under section 1385, and made specific findings:

"So, I considered the oral motion presented by the defense and in response by the prosecution. In addition, I considered the current charges against the defendant, and the defendant's criminal record, particularly, the criminal record, the defendant's background, character and prospects in

the interests of justice, given all of that, and the court is very aware of what happened at trial in terms of the evidence that did come out, so it has considered everything in this case. [¶] The court does find that the defendant is not outside the spirit of the three strikes law and denies the defense motion in that regard." (Italics added.)

Based on the court's statement of reasons when it denied defendant's Romero request, its finding that defendant was "absolutely unsuitable" for probation based on the circumstances of his convictions and his prior record, and its decision to impose consecutive upper terms, we decline to remand the matter because the record reveals no possibility the court would exercise its discretion under section 1385 and dismiss the section 667, subdivision (a) five-year enhancement. (People v. McVey, supra, 24 Cal.App.5th at p. 419; People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)

DISPOSITION

The one-year term imposed for the section 667.5, subdivision (b) prior prison term enhancement is stricken. Defendant's aggregate term must be modified to 18 years eight months.

The trial court is directed to cause to be prepared an amended abstract of judgment reflecting this modification. The trial court shall have a certified copy of the amended abstract forwarded to the appropriate authorities. As so modified, the judgment is affirmed.

/s/_________

POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
MEEHAN, J.