Opinion
F078154
05-07-2021
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO GUAJARDO FLORES, JR., Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F18902000)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Following a physical altercation with his girlfriend, M.R., and a bystander, E.V., at a park, defendant Fernando Guajardo Flores, Jr. was convicted by jury of two counts of willfully inflicting corporal injury on a cohabitant (M.R.) with prior convictions within the meaning of Penal Code section 273.5, subdivision (f)(1) and (f)(2) (§ 273.5, subds. (a), (f)(1) & (f)(2) (hereafter section 273.5(a), (f)(1) & (f)(2) or § 273.5(a), (f)(1) & (f)(2)); counts 1 & 2); and assault by means likely to produce great bodily injury (GBI) on M.R. (§ 245, subd. (a)(4); count 3). As to E.V., whom defendant struck and kicked, defendant was convicted of assault by means likely to produce GBI (§ 245, subd. (a)(4); count 5), but defendant was found not guilty of assault with a deadly weapon (§ 245, subd. (a)(1); count 4).
All further statutory references are to the Penal Code unless indicated otherwise.
As to counts 1 and 2, the jury found true the allegations defendant personally inflicted GBI on M.R. within the meaning of section 12022.7, subdivision (e) (hereafter section 12022.7(e) or § 12022.7(e)); and, as to count 3, the jury found true the allegation defendant personally inflicted GBI on M.R. within the meaning of section 12022.7, subdivision (a) (hereafter section 12022.7(a) or § 12022.7(a)). Defendant admitted he had suffered two prior serious and violent felony convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and a serious felony within the meaning of section 667, subdivision (a) (hereafter section 667(a) or § 667(a)).
Section 12022.7(e) provides that any person who personally inflicts GBI under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment for three, four, or five years.
Section 12022.7(a) provides that any person who personally inflicts GBI on any person other than an accomplice in the commission of a felony or attempted felony is to be punished by an additional and consecutive three-year term in the state prison.
The court sentenced defendant to a determinate term of 13 years, followed by an indeterminate term of 25 years to life as follows. On count 1, for infliction of corporal injury on M.R. in conjunction with the GBI enhancement, which elevated the crime to a serious and violent felony (§§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8)), the court imposed a term of 25 years to life under the Three Strikes law (§§ 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii)), plus an additional and consecutive five-year term for prior serious felony convictions within the meaning of section 667(a)(1). On count 2, also for infliction of corporal injury to M.R. under section 273.5, the court imposed the same sentence, but stayed its execution under section 654. On count 3, for assault on M.R. by means likely to produce GBI in conjunction with the GBI enhancement allegation, the court imposed 25 years to life under the Three Strikes law (§§ 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii)), plus an additional three years for the GBI enhancement (§ 12022.7(a)), and an additional five years for the prior serious felony (§ 667(a)(1)), all of which the court stayed under section 654. As to count 5 for assault upon E.V. by means likely to produce GBI, the court imposed the upper term of four years, which was doubled to eight years under the Three Strikes law.
The court imposed a $160 court operations assessment (§ 1465.8, subd. (a)(1)), a $120 court facilities assessment (Gov. Code, § 70373), and a $10,000 restitution fine (§ 1202.4, subd. (b)).
Although noting the middle four-year term was appropriate for the GBI enhancement on count 1 under section 12022.7(e), the trial court declined to impose the sentence, citing the prosecutor's argument it represented a potential dual use of an enhancement. We requested the parties brief whether imposition of the GBI enhancement represented a violation of the prohibition on dual use of enhancements. We conclude it does not, and the resulting sentence on count 1 was unauthorized—the GBI enhancement was either (1) to be imposed or (2) stricken or dismissed under section 1385.
Further, as defendant argues and respondent concedes, we agree the conviction on count 2 (willfully inflicting corporal injury on a cohabitant under § 273.5) must be vacated because M.R. sustained only a single injury as a result of defendant's attack; conviction for two separate violations of section 273.5 under counts 1 and 2 as to M.R. was improper. (See People v. Johnson (2007) 150 Cal.App.4th 1467, 1477 ["[W]here multiple applications of physical force result in separate injuries, the perpetrator has completed multiple violations of section 273.5."].)
Defendant also maintains resentencing is required so the court may determine whether to exercise its new discretion under Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2, pp. 1-6 (Senate Bill 1393 or Sen. Bill 1393)) to strike the prior serious felony convictions under section 667(a). Particularly given the need for resentencing based on the unauthorized sentence imposed on count 1, remand to allow the court an opportunity to consider whether to exercise its discretion under Senate Bill 1393 is not futile. Finally, given the need for resentencing, we decline to reach defendant's arguments pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and defendant's ability to pay the fines and fees.
FACTUAL SUMMARY
Defendant was charged with multiple crimes when, on March 22, 2018, he punched his then-girlfriend, M.R., in the face twice and punched and kicked E.V., who attempted to stop defendant's attack on M.R. The case was tried before a jury in June 2018.
According to M.R., she and defendant had been dating and living together for about a year when the attack occurred in March 2018 at a park in Sanger. M.R. was in the park to meet defendant so that they could talk—M.R. had moved out. When defendant appeared at the park, he approached M.R. and hugged her. Defendant then walked over to the bathrooms and began a physical altercation with a shorter man M.R. had never seen before. Another girl was with the shorter man, and she was trying to stop defendant and was chasing defendant while defendant was chasing the shorter man. M.R. had not wanted to become involved in that fight—she knew not to get close to defendant during fights because he was known to swing at anything. When the fight ended, defendant came toward M.R. yelling "'Where were you?'" Defendant appeared to be drunk. Before M.R. had a chance to say anything, defendant hit her in the forehead and "busted up" her eye.
M.R.'s cousin, E.V., was at the park that day too and saw what happened. She came over and told defendant something to the effect of "stop" or "don't do that." Defendant responded to E.V., saying something like "you want some, too?" and M.R. saw him kick E.V. in the face. After defendant kicked E.V., he turned back on M.R. and hit her one more time while M.R. was on the phone making a 911 call, which was played for the jury. M.R. did not feel the second blow, but remembered blood all over her face. M.R. was taken to the hospital where, based on the testimony of the attending physician, she received 10 stitches above her left eye; the laceration resulted in a scar approximately two inches long. She sustained no other injuries.
E.V. testified she was at the park that day and saw defendant fighting with another lady and a man—he appeared to be chasing them. When the chase was over, he approached M.R. and appeared angry—he was yelling, "cursing" at her and asking, "Where were you?" When he arrived next to M.R., he took a swing at her with his right hand. E.V. did not see how many times defendant hit M.R., but remembered M.R.'s face being really bloody. She recalled M.R. fell and hit a cement chair during the fall. E.V. ran toward them and tried to get defendant to stop—she yelled out his name and asked him to stop. Defendant turned around and took a swing at E.V., hitting her on the side of her face by her right eye. She apparently fell and lost consciousness; she remembered putting her hands over her face. She also had an injury at the back of her head after the event she did not have before. She went to the hospital by ambulance and continued to suffer from back pain, leg pain, and facial pain after the attack.
Another bystander, Emily E., also testified. She had been at the park that day eating with her mother and stepfather in the car. A blue truck parked right next to them, and a man got out and walked toward the restroom, where he was attacked by defendant. Defendant lunged at this man and began hitting him and choking him. Emily got out of her car and pulled defendant off the other guy, and Emily's mother started honking the horn to distract defendant.
When Emily pulled defendant off this man from the blue truck, that man ran away. Emily thought defendant was going to hit her, but her mother threatened to drive the car over him. Defendant then hugged Emily, said it was not her fault, and walked off toward another lady who was wearing a red sweater with curly hair, sitting on a cement bench. Emily believed defendant was intoxicated because she could smell alcohol on him. He was yelling at this women, "Where were you at?" He then hit this woman, and she flew back, bleeding. Emily did not see anything after he hit this woman because she left with her family and called the police on the way home. She told the 911 dispatcher she had seen a fight, defendant had a weapon, and he had hit a woman at the scene. The dispatcher told Emily to return to the park, which she did. A recording of Emily's 911 call was played for the jury.
When police officers arrived at the park, defendant had run off, so two officers worked to capture defendant. When they reached him, defendant would not comply with their commands. The officers had been advised defendant had a knife holstered in his waistband, which they could see as they approached him. One of the officers deployed a taser device when it appeared defendant began reaching for the knife.
Defendant also testified on his own behalf. According to him, defendant had an altercation with a man at the park who he had never seen before. He had seen this man when defendant first arrived at the park because the man was talking to M.R. and a few other people at a table. He was supposed to have met M.R. earlier, but he was running late and she had been waiting for defendant for some time. This other man had his arms around M.R. As defendant approached them he began yelling to M.R., asking her who this man was and what they were doing together. One thing led to another, and they were fighting close to the bathrooms. A young lady interjected herself into the fight.
Defendant did not see the man he was fighting with leave the park, but when his fight with this man ended, defendant started arguing with M.R. and hit her. Defendant also saw another bystander there, and there might have been other females involved; defendant did not remember striking E.V. According to defendant, there were many people there and he was fighting off multiple people—they all attacked him. Defendant admitted he had about five cans of beer that day between 3:00 p.m. and 6:00 p.m. when the event occurred.
A call between defendant and his mother, recorded while defendant was in custody, was played for the jury. Defendant told his mother all he could remember of the events was getting tased by the police. He also asked her where the incident occurred. Defendant testified he did remember the events, but knew the call was recorded and so he did not wish to discuss it with his mother. He could not explain why he asked his mother where the incident occurred.
The jury found defendant guilty on counts 1 and 2 for inflicting corporal injury on M.R., and found true defendant personally inflicted GBI on M.R. pursuant to section 12022.7(e) as to each of these counts. Defendant was found guilty on count 3 of assault on M.R. by means likely to produce GBI, and the jury found true that defendant had personally inflicted GBI on M.R. within the meaning of section 12022.7(a). Finally, defendant was found guilty on count 5 for assault on E.V. by means likely to produce GBI.
Defendant was sentenced to an aggregate term of 38 years to life in prison. This appeal followed.
DISCUSSION
I. Unauthorized Sentence on Count 1
The true finding on the GBI allegation in count 1 had three sentencing consequences. First, the GBI finding resulted in defendant's conviction under section 273.5 (count 1) being defined as a serious and violent felony under the Three Strikes law, and it was deemed a third strike by virtue of defendant's admission to prior serious and violent felony convictions. Thus, the court was required to sentence defendant to an indeterminate life sentence with a minimum term of 25 years, as calculated under section 667, subdivision (e)(2)(A)(i)-(iii). Second, the GBI finding also rendered the conviction a serious felony within the meaning of section 667(a), triggering that additional five-year sentence enhancement in light of his admitted prior serious felony convictions. Finally, the GBI finding itself under section 12022.7(e) carried an additional and consecutive term of three, four, or five years.
At sentencing, the trial court imposed a sentence of 25 years to life under the Three Strikes law, plus an additional and consecutive five-year term for the prior serious felony enhancement under section 667(a), but declined to impose sentence on the GBI enhancement under section 12022.7(e), stating that it may result in the dual use of an enhancement as noted by the prosecutor. In a footnote in a sentencing brief, the prosecutor argued the court should not impose a separate determinate sentence for the GBI enhancement under section 12022.7(e) because it was that enhancement which makes count 1 a violent felony, subjecting defendant to his third strike. The prosecutor argued "the People feel that would be improper 'dual use' of the same enhancement."
It is well established in California that a trial court's failure "either (1) to pronounce sentence on a statutory sentence-enhancement allegation based upon a finding by the trier of fact or an admission by the defendant that the allegation is true, or (2) to exercise its discretion—to the extent imposition of the enhancement is discretionary—to either strike the enhancement allegation or impose the enhancement, results in an unauthorized sentence." (People v. Vizcarra (2015) 236 Cal.App.4th 422, 432.) "[S]uch an unauthorized sentence is subject to correction by an appellate court 'whenever the error comes to the attention of the court, even if the correction creates the possibility of a more severe punishment.'" (Ibid.)
As a general proposition, the dual use of enhancements or facts at sentencing is prohibited. For example, in People v. Jones (1993) 5 Cal.4th 1142, 1150 (Jones), the court held it was improper to impose status enhancements under both section 667.5 and section 667 for a single prior conviction. This holding was based on the court's construction of the predecessor to section 667(a)(2) to mean, "when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667[(a)] enhancement, the greatest enhancement, but only that one, will apply." (Jones, supra, at p. 1150.)
But, in the context of the Three Strikes law, sentence enhancements serve multiple, distinct purposes without violating a dual-use prohibition. (See People v. Dotson (1997) 16 Cal.4th 547, 555-557 (Dotson).) In Dotson, the trial court had used prior serious felony enhancements under section 667(a) to calculate the greatest minimum indeterminate term under the Three Strikes law, but then refused to impose those enhancements as part of the determinate term. (Dotson, supra, at pp. 551, 553.) The high court explained neither the Three Strikes law, nor an indeterminate life term imposed thereunder, is a sentence enhancement. Rather, the Three Strikes law "prescribes a method by which [the] defendant's minimum indeterminate life term is calculated." (Dotson, supra, at p. 556.) The prior serious felony enhancements are properly used to calculate the minimum sentence under the Three Strikes law and then imposed as part of the determinate sentence. (Dotson, supra, at p. 560.)
Analogous to Dotson, the GBI enhancement here was used to define defendant's crime as a serious and violent felony under the Three Strikes law, which was his third strike offense by virtue of defendant's admission to prior serious and violent felony convictions; this required imposition of an indeterminate life term under section 667, subdivision (e)(2)(A). As provided by section 667, subdivision (e), that indeterminate sentence calculated under section 667, subdivision (e)(2)(A), is to apply "in addition to any other enhancement or punishment provisions which may apply." Therefore, also analogous to Dotson, the imposition of a separate determinate term for the applicable enhancements is appropriate—which includes both the prior serious felony conviction enhancement (§ 667(a)) and the GBI enhancement (§ 12022.7(e)).
Defendant contends imposing a sentence for the GBI enhancement is analogous to a sentencing court imposing an upper or aggravated term by using the fact of an enhancement upon which sentence is imposed—which is prohibited. (§ 1170, subd. (b); see People v. Scott (1994) 9 Cal.4th 331, 350.) According to defendant, sentencing under the Three Strikes law represents an aggravated sentence; using the GBI enhancement to define the current crime as a serious and violent felony (§§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8)) and therefore apply an aggravated minimum term to 25 years to life and impose a sentence for the GBI enhancement is a prohibited dual use of the GBI enhancement.
We are not persuaded. Application of the Three Strikes law is not discretionary like selection of the base term as outlined in section 1170, subdivision (b). (People v. Carmony (2004) 33 Cal.4th 367, 376 [Three Strikes law applies unless court concludes, for reasons that can withstand scrutiny, the defendant lies outside the spirit of the law].) If the current felony qualifies as a serious and/or violent felony under sections 1192.7, subdivision (c), and/or 667.5, subdivision (c), upon pleading and conviction, the trial court has no discretion to define it otherwise at sentencing. Moreover, unlike selection of the upper term based on the fact of an enhancement to punish that conduct more harshly, the purpose of the Three Strikes law is to mete out harsher punishment for defendant's recidivist status. Defendant was not subjected to an aggravated third-strike sentence because he inflicted great bodily injury but because he committed a third serious and violent felony. Similarly, in People v. Jones (2009) 47 Cal.4th 566, the defendant was sentenced under section 186.22, subdivision (b)(4), to 15 years to life for shooting at an inhabited dwelling to benefit a street gang; this life sentence triggered application of a 20-year sentence enhancement under section 12022.53, subdivision (c), which applied to crimes punishable by life imprisonment that are committed by personally and intentionally discharging a firearm. (People v. Jones, supra, at p. 575.) In concluding imposition of both statutes was not impermissible bootstrapping or dual use, the court pointed out the defendant was "subject to that additional 20-year term not because he committed a gang-related offense but because he committed a particularly heinous crime (that is, a crime so serious that it is punishable by life imprisonment)." (Ibid.)
Beyond this, the sentences provided under the Three Strikes law are not enhancements; they define the term for the crime itself, supplanting the term that would apply but for the prior serious or violent felony or felonies. (See, e.g., People v. Nelson (1996) 42 Cal.App.4th 131, 141.) Imposing a third-strike sentence under section 667, subdivision (e)(2)(A) and imposing a sentence for the GBI enhancement under section 12022.7, subdivision (e), does not result in two sentence enhancements for the same underlying conduct.
Defendant argues that even if the court were to impose a sentence for the GBI finding, it would have to be stayed under section 654 to avoid double punishment for the same conduct. Defendant focuses on the fact that but for the GBI finding, defendant's prior strikes would have subjected him only to second-strike sentencing—the third-strike sentence was solely attributable to the GBI finding. As already discussed, defendant's two prior serious felonies subjected him to a third-strike sentence for any current serious or violent felony conviction regardless whether defendant inflicted GBI on the victim. The third-strike sentence punishes defendant for repeatedly committing a certain class of felony. Indeed, the focus of the Three Strikes law is to punish repeat serious and violent felony offenders; it is not aimed at punishing the specific manner in which a felony is committed. (People v. Murphy (2001) 25 Cal.4th 136, 155 [purpose of Three Strikes law "'is to punish recidivism'"].) Application of a third-strike sentence and the GBI enhancement does not punish defendant twice for the same conduct.
Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. (§ 654; see People v. Deloza (1998) 18 Cal.4th 585, 591.)
As there is no dual-use violation with respect to the GBI enhancement, the court was required to either impose a sentence for the GBI enhancement or exercise its discretion to dismiss/strike the GBI enhancement or the punishment for it under section 1385, subdivisions (a) or (b). The failure to do either of these resulted in an unauthorized sentence. This requires remand for resentencing.
II. Conviction Under Section 273.5(f)(2) (Count 2) Must Be Vacated
Defendant argues he cannot be sentenced for multiple violations of section 273.5 because M.R. suffered only a single injury, which respondent concedes. Respondent maintains there is only one substantive offense under section 273.5, but subdivision (f)(1) and (f)(2), under which defendant was convicted in counts 1 and 2 respectively, provide for more severe penalties for defendants who have particular qualifying offenses. Respondent argues defendant was convicted under these two separate penalty provisions, which are based on the same criminal conduct and do not constitute two separate offenses.
A. Background
Defendant was charged with two separate counts of willfully inflicting corporal injury upon his cohabitant, M.R. As to count 1, in addition to alleging defendant violated section 273.5 with respect to M.R., the second amended information also alleged defendant had been convicted of a separate violation of section 273.5(a) within the prior seven years, resulting in a greater penalty under section 273.5 (f)(1). As to count 2, in addition to alleging defendant violated section 273.5 with respect to M.R., the second amended information also alleged defendant had been convicted of a violation of section 243, subdivision (e) (battery on a cohabitant) within the prior seven years, subjecting defendant to a greater penalty under section 273.5 (f)(2).
Defendant admitted prior convictions of a violating section 273.5(a) in April 2015 and of violating section 243, subdivision (e), in April 2016. The evidence at trial established defendant struck M.R. twice in the same spot on her face during his attack on her, but M.R. sustained only one injury—a laceration above her eye that required 10 stitches. The prosecutor argued in closing that counts 1 and 2 were identical except that they involved different prior convictions to which defendant had stipulated. When discussing the GBI enhancement allegations as to each count, the prosecutor referenced only one injury—the laceration M.R. received above her eye.
B. Multiple Convictions Under Section 273.5 Was Improper
Under section 273.5, any person who "willfully inflicts" corporal injury upon a spouse or cohabitant is guilty of a violation of the statute. (§ 273.5(a).) The section is violated only if corporal injury results from the "direct application of force on the victim by the defendant." (People v. Jackson (2000) 77 Cal.App.4th 574, 580.) The statute proscribes a "very particularized battery." (Id. at p. 578.) The essence of any battery is the touching of the victim, and under section 273.5, the touching must result in bodily injury. Where there are multiple applications of physical force resulting in separate injuries, the perpetrator completes multiple violations of section 273.5. (People v. Johnson, supra, 150 Cal.App.4th at p. 1477.) Thus, as here, evidence of two punches to M.R.'s face resulting in a single laceration constitutes a completed violation of section 273.5, but not two violations of the statute.
Moreover, the underlying prior felony convictions that result in greater penalties under section 273.5(f)(1) and (f)(2) do not form a basis for separate convictions. Section 273.5(f)(1) provides enhanced penalties for persons convicted of violating section 273.5(a) "for acts occurring within seven years of a previous conviction under [section 273.5(a)]." Under those circumstances, the punishment is "imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and a fine of up to ten thousand dollars ($10,000)." (§ 273.5(f)(1).) Under section 273.5(f)(2), enhanced penalties are provided for a person convicted of violating section 273.5(a) "for acts occurring within seven years of a previous conviction under ... Section 243[, subdivision (e)] ...." In that case, the defendant is to be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to ten thousand dollars ($10,000), or by both that imprisonment and fine."
Respondent analogizes section 273.5(f)(1) and (f)(2) here to the penalty provisions considered in People v. Muhammad (2007) 157 Cal.App.4th 484 (Muhammad) and People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon). In those cases, the courts vacated multiple convictions for a single offense based on differing penalty provisions provided under the respective statutes.
In Muhammad, the court considered section 646.9, which sets out in several subdivisions the definition of stalking as well as alternative penalties for the offense that depend on the stalker's criminal history. (Muhammad, supra, 157 Cal.App.4th at p. 486.) A conviction for stalking under section 646.9, subdivision (a) (hereafter section 646.9(a)) results in an alternate misdemeanor or felony punishment of up to three years in prison. Pursuant to section 646.9, a felony sentence of up to four years under subdivision (b) or five years under subdivision (c) is imposed if subdivision (a) is violated at a time when a valid restraining order protecting the victim from the accused is outstanding or the accused has certain specified prior convictions. Muhammad was convicted of four separate counts of stalking under section 646.9(a), subdivision (b) (stalking in violation of a restraining order), subdivision (c)(1) (stalking with a prior terrorist threats conviction), and subdivision (c)(2) (stalking with a prior felony stalking conviction), all arising from an identical course of conduct against the same victim. (Muhammad, supra, at p. 486.)
On appeal, Muhammad argued he was erroneously convicted of four counts because subdivisions (a), (b), (c)(1), and (c)(2) of section 646.9 do not describe four separate offenses, but describe alternate punishments for the single offense of stalking. (Muhammad, supra, 157 Cal.App.4th at p. 486.) The court agreed that three of the convictions had to be vacated and explained subdivisions (b), (c)(1) and (2) of section 646.9 were not sentence enhancements nor did they define any substantive offense—they were penalty provisions. (Muhammad, supra, at p. 486.) Muhammad had committed the single offense of stalking, but his history of misconduct satisfied three separate penalty provisions, each of which required he be subject to a greater punishment than imposed under section 646.9(a). (Muhammad, supra, at p. 494.) Though the single stalking offense was charged in four separate counts, Muhammad could be convicted of only one count of stalking. (Ibid.)
The court reached a similar result in Ramon, which involved different subdivisions of former section 12031. (Ramon, supra, 175 Cal.App.4th at pp. 853-858.) There, the jury convicted Ramon of two different violations of section 12031 for possession of a loaded firearm (1) while a member of a criminal street gang (former § 12031, subd. (a)(2)(C)); and (2) for which he was not the registered owner (former § 12031, subd. (a)(2)(F)). (Ramon, supra, at pp. 853-854.) The court concluded former section 12031, subdivision (a)(2)(C) and (a)(2)(F), were penalty provisions, depending on the circumstances surrounding the offense of carrying a concealed firearm. (Ramon, supra, at p. 857.) Thus, the court concluded separate convictions under former section 12031, subdivision (a)(2)(C) and (a)(2)(F) could not survive given that Ramon had violated former section 12031, subdivision (a)(1)—the substantive crime, only once. (Ramon, supra, at pp. 857-858.)
We agree that section 237.5(f)(1) and (f)(2) prescribe different penalties, but they do not define separate substantive offenses. Analogous to section 646.9 considered in Muhammad and former section 12031 in Ramon, section 273.5(f)(1) and (f)(2) are penalty provisions. Each section first references a violation of section 273.5 and then each establish a higher base term for corporal injury to a cohabitant (or other specified person) when committed by a defendant with a particular criminal history. Defendant caused only a single injury to M.R., and thus committed only one substantive violation of section 273.5, but it was charged as two separate counts under the enhanced penalties provided in subdivision (f)(1) and (f)(2) of section 273.5 because his specific criminal history satisfied both. Under the facts of this case, like Muhammad and Ramon, defendant may be convicted under section 273.5 only once. Since the court selected the count 1 conviction under 273.5(f)(1) as the primary term, we find it appropriate to affirm that conviction and vacate defendant's conviction on count 2, which involved section 273.5(f)(2).
As the conviction on count 2 is vacated on this basis, we do not reach defendant's additional arguments of error regarding count 2.
III. Senate Bill. 1393
Defendant's prison sentence includes a five-year enhancement pursuant to section 667(a) based on prior serious felony convictions. In September 2018, Senate Bill 1393 was signed into law. The legislation amended sections 667(a)(1), and 1385, subdivision (b), and vested trial courts with discretion they did not formerly have to dismiss or strike a prior serious felony conviction for sentencing purposes. (Sen. Bill 1393.) The new law became effective January 1, 2019.
Senate Bill 1393 applies retroactively to nonfinal judgments. (People v. Stamps (2020) 9 Cal.5th 685, 699.) Defendant seeks remand so the court may consider exercising its discretion to strike his prior serious felony convictions. The People argue remand is unnecessary and would constitute a futile act given the record.
"'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A 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.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Bell (2020) 47 Cal.App.5th 153, 199 [remand unnecessary where record clearly indicates court would not have stricken prior serious felony enhancement if it had the discretion afforded under Sen. Bill 1393]; People v. Jones (2019) 32 Cal.App.5th 267, 274 [same]; People v. Johnson (2019) 32 Cal.App.5th 26, 69; People v. Almanza (2018) 24 Cal.App.5th 1104, 1109-1111; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081-1082; People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428.)
The court indicated it would not grant any Romero motion as to defendant's prior strikes or enhancements. However, a refusal to strike prior strikes under Romero as it pertains to the Three Strikes law indicates only a finding that no extraordinary circumstances warranted departure from that statute. (See People v. Carmony, supra, 33 Cal.4th at p. 376 [whether to strike or vacate prior serious felony pursuant to § 1385, subd. (a), court must consider whether the defendant may be deemed outside the spirit of the Three Strikes law sentencing scheme].) Further, in light of the need to remand for resentencing on count 1 as to the GBI enhancement, and depending on how the court imposes a sentence thereon or exercises its discretion under section 1385, we decline to guess how the trial court might exercise its discretion with respect to the prior serious felony convictions. (See People v. Almanza, supra, 24 Cal.App.5th at pp. 1110-1111 ["speculation about what a trial court might do on remand is not 'clearly indicated' by considering only the original sentence"].) We express no opinion whether the trial court should exercise its discretion under Senate Bill 1393.
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the court held that under section 1385 a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony. --------
IV. Dueñas
The trial court imposed a $10,000 restitution fine under section 1202.4, subdivision (b)(1), and the court also imposed a corresponding parole revocation fine (§ 1202.45) in the same amount, which was suspended, a $160 court operations assessment (§ 1465.8, subd. (a)(1)), and a $120 criminal conviction assessment (Gov. Code, § 70373). Relying on Dueñas, supra, 30 Cal.App.5th 1157, which was issued while this appeal was pending, defendant contends his fees and fines should be stayed or stricken based on his inability to pay.
Given the need to remand for a resentencing hearing, we conclude it is unnecessary to reach defendant's Dueñas arguments; they are moot and we do not consider them.
DISPOSITION
The conviction on count 2 is vacated. The matter is remanded for resentencing proceedings consistent with this opinion: the trial court shall impose sentence on the GBI enhancement on count 1 or shall strike or dismiss it or strike the additional punishment for it pursuant to section 1385, subdivisions (a) or (b); the trial court shall determine whether to exercise its discretion to strike or reimpose the five-year prior serious felony conviction enhancement; and defendant may present his argument under Duenas regarding his inability to pay the fines and fees.
MEEHAN, J. WE CONCUR: LEVY, Acting P.J. FRANSON, J.