Filed 6/9/22 P. v. Nash CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076768
v. (Super.Ct.No. RIF2002177)
LAWRENCE ANTHONY NASH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Affirmed in part; reversed in part and remanded for resentencing.
Michael Allen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, A. Natasha Cortina, Acting Assistant Attorney General, Steve Oetting and
Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant and appellant Lawrence Anthony Nash was with a group of friends
when they confronted the victim, who was visiting his uncle’s house next door. One of
defendant’s cohorts, Anthony Barrow, sucker punched the victim in the face. Barrow
pushed the victim into a nearby SUV, shattering the window. Defendant jumped over the
fence between the two properties and rushed at the victim with a sharp object that the
victim and his mother identified as a knife. Defendant told the victim that he was going
to kill him, and then stabbed the victim in the head causing a puncture wound.
Defendant claims in his opening brief on appeal that (1) insufficient evidence was
presented to support his conviction of assault with a deadly weapon other than a firearm
as there was no substantial evidence that he had a knife; (2) his criminal threat conviction
must be reversed because there was no substantial evidence the alleged threat caused the
victim to fear for his safety; (3) counsel was ineffective for failing to introduce the
victim’s testimony from the preliminary hearing to impeach the victim’s trial testimony;
and (4) the trial court erred by imposing consecutive sentences for both his assault and
criminal threat convictions as they must be stayed pursuant to section 654. In a
supplemental brief, defendant contends that Senate Bill No. 567 (Stats. 2021, ch. 731, §
1.3 [SB 567], eff. Jan. 1, 2022) restricts the trial court’s discretion to impose an upper
term sentence, requiring the matter be remanded for resentencing. We agree that remand
is necessary for resentencing but otherwise affirm.
2 FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was convicted at a court trial1 of one count of assault with a deadly
weapon other than a firearm, a knife (Pen. Code, § 245, (a)(1); count 1)2; and one count
of making criminal threats (§ 422; count 2). Defendant admitted he had suffered one
prior serious and violent felony prior conviction within the meaning of sections 667,
subdivisions (a)(1), (c) through (e)(1), and 1170.12, subdivision (c)(1). Defendant was
sentenced to a state prison term of nine years four months, which consisted of the upper
term of four years, doubled for the strike, for a total term of eight years on count 1, and a
consecutive sentence of one year four months on count 2.
B. FACTUAL HISTORY
1. PEOPLE’S CASE-IN-CHIEF
On December 29, 2019, at around 4:00 or 5:00 p.m., the victim’s mother was at
her brother’s house located on 29th Street in Jurupa Valley. Also home were her
husband, her brother, her sister-in-law (hereafter, aunt), and some children. The victim
was her son and he had just arrived at the house with his girlfriend to visit.
The victim’s mother heard something outside. She went outside and saw that the
victim was surrounded by four or five Black men. They were loudly cussing at him and
appeared to want to fight him. The victim’s mother saw a heavyset man, identified as
1 Defendant waived his right to a jury trial.
2 All further statutory references are to the Penal Code unless otherwise indicated.
3 Anthony Barrow, push the victim into a nearby SUV. Barrow pushed the victim’s head
into the windshield of the SUV. The victim’s head went backward and shattered the
glass. Aunt was able to separate the victim and Barrow.
The victim’s mother observed a skinny man wearing a brown hoodie, who she
identified in court as defendant, jump over the fence from the house next door and
approach the victim. She saw defendant pull something out of his waistband, which she
thought was a knife. She said the knife was at least eight inches long. Defendant went
toward the victim’s head stabbing him with the knife. The victim had a gash on his head
as a result and was bleeding. Defendant only stabbed the victim one time. The victim
was able to push defendant out the gate of the property.
The victim and his mother headed back to the house. Barrow threw a brick at her.
The victim was able to deflect it so it did not hit her in the head. Barrow said that he did
not give a “fuck” that she was female. Later in her testimony, the victim’s mother stated
that defendant had thrown the brick and Barrow had thrown a helmet.
The victim testified he went to his aunt’s and uncle’s house in Jurupa Valley that
day. He and his girlfriend pulled up to the house. He saw a group of Black men outside
the house next door. One of the men was Barrow, who the victim described as being six
feet, two inches tall, and weighing 400 pounds. Barrow asked to speak with the victim.
As the victim approached Barrow, Barrow punched him in the face. Barrow mentioned
that the victim “had to pay [his] respects” but never explained what that meant.
The victim told his girlfriend to go inside. The victim briefly went inside and then
went back outside to the car to get items out of the car he was concerned they would take.
4 Barrow approached him by the SUV. The victim noticed that a window had been broken
on his girlfriend’s car.
The victim saw defendant jump over the fence from next door and he had
something shiny in his pants. Barrow pushed the victim into the SUV. He pushed with
enough force to break the window. At that point, defendant pulled out his knife—which
the victim described as having a fixed blade and was eight inches—and stabbed the
victim in the head. The victim was certain defendant was holding the knife. Defendant
swung with a lot of force. The victim felt the pain of the knife going into his head.
Defendant swung the knife at him several more times but the victim was able to move out
of the way. Defendant told the victim, while holding the knife, just prior to stabbing him,
that he was going to kill him.
Aunt and the victim were able to get Barrow off the victim and the victim was able
to push defendant out of the gate. Defendant grabbed a brick. He and the others threw
bricks at the victim and his family.
The victim explained he and Barrow had previously been involved in an incident
during which Barrow took what he thought were drugs from the victim but they turned
out not to be drugs. The victim denied he sold drugs to Barrow.
The victim did not want medical attention after the incident. He never saw the
knife after the incident. He did not require stitches. He went to the doctor the next night
and was told he had a minor concussion.
Aunt called the police. The victim was near aunt when she made the call. Aunt
told the dispatcher that the people next door broke the window to her car and “stabbed
5 my nephew.” She was asked who stabbed her nephew. It was clear she was speaking to
someone else and then said, “Uhh, a, a big, which one stabbed [the victim]? Which one?
A little one. The one that jumped the fence?” A male was heard speaking in the
background, and then she reported, “Yes, so he jumped our fence. He’s, he’s wearing all
gray with black pants.” The man who stabbed the victim was short and very skinny and
they only knew him as “Ant.” Aunt reported that the victim was bleeding. Aunt stated
that they did not know the size of the knife; they only saw “something shiny.”
Riverside County Sheriff’s Deputy Cosper was on duty on December 29, 2019, at
approximately 5:18 p.m. When he arrived at the scene, he found several adult females
who were “chaotic” and the victim was bleeding. He took pictures of the victim’s
wounds. The victim also had injuries to his arm and abdomen. Cosper found bricks and
a helmet on the ground. He was told that the bricks had been thrown at the victim.
The victim was able to identify Barrow as the person who pushed him into the
SUV. The victim gave a description of defendant and said he was named Ant or
Anthony. The victim did not know his last name. Deputy Cosper observed the broken
windshield on the SUV.
Deputy Cosper spoke with the victim’s mother. She told him that she was unsure
how the victim was injured. Cosper did not recall her mentioning a knife. The victim
told him that he saw a knife. He described it as being steel. The knife was not found. He
described the victim’s wound as being a puncture wound. The victim told him that he
had been stabbed two times but Cosper only observed one puncture wound. The victim
also told Cosper that defendant threatened him that he was going to die. Barrow threw a
6 brick at him; the victim did not state that defendant threw a brick at him. Cosper never
asked the victim’s mother if she had seen a knife.
The victim’s mother explained that she was scared when she spoke with Deputy
Cosper. She did not recall what she told him. She denied that the victim ever swung at
Barrow. The victim’s mother admitted that she never told Cosper that night that she saw
a knife. She did not recall telling him that Barrow had thrown the brick.
The victim acknowledged that he did not want to testify. He was in custody when
he was brought to court for the preliminary hearing. He was scared during the
preliminary hearing because he had received threats that some people were going to try to
beat him up in custody if he testified against defendant. He identified defendant at the
hearing. He was scared at trial to testify because of his own pending case for which he
might go back into custody. He had one interaction with defendant after the incident and
it had been peaceful.
The victim did not recall telling Deputy Cosper he had been stabbed more than
once. He denied ever taking a swing at Barrow or defendant. He had told Cosper that he
saw defendant with a shiny object but was sure at trial that it was a knife. It looked like a
fixed-blade kitchen knife. Defendant had the knife tucked in his waistband when he
jumped the fence. The victim insisted he told Cosper that both Barrow and defendant
were throwing bricks at them. Defendant ran up the street before Cosper arrived.
Riverside County Sheriff’s Deputy Valenciano was assigned to the gang task force
at the sheriff’s department. She followed up on the incident because the Westside PJ
gang had been mentioned during the investigation. Deputy Valenciano discovered that
7 defendant might look like the person who the victim described as stabbing him. The
victim identified defendant on June 23, 2020.3
Deputy Valenciano then spoke with defendant on that day or the next day.
Defendant admitted to her that he was a member of Westside PJ and that they called him
Ant or Pharaoh. Defendant initially told her that on the day of the incident he believed he
was in Palm Springs. Defendant had been arrested on June 24, 2020, for being under the
influence. Valenciano admitted he may have been still intoxicated when she spoke with
him the first time.
On June 30, 2020, Deputy Valenciano interviewed defendant a second time. He
told her he was mistaken about being in Palm Springs and that he was present during the
altercation with the victim. Defendant told her that Barrow punched the victim in the
face and pushed him into the SUV. He denied that he was involved in the altercation.
Defendant insisted that the victim was cut when the window broke not because he
stabbed him.
2. DEFENSE
Hudson Bales was a private investigator and testified as an expert. Bales had been
a deputy sheriff at the Riverside County Sheriff’s Department for 17 years. He also had
served in the Marine Corps. He was a close combat instructor for the Marine Corps and a
use of force expert for the Riverside County Sheriff’s Department. He had been trained
3 The victim testified he was afraid to be seen talking with Deputy Valenciano because “snitches get stitches.” He denied he ever told Valenciano that he had been stabbed in the head twice.
8 in the use of knives. He had seen persons injured by a bladed instrument on five prior
occasions.
Bales suspected that if a person was stabbed in the head, there would be a graphic
puncture wound. He also would expect it to be a lethal blow. It was possible to puncture
the skull and cause fractures. He looked at photographs taken of the victim’s injuries.
His injuries were not consistent with being twice stabbed in the head. There were
abrasions; not stab wounds. He would expect to see blood splatter on the SUV.
Bales concluded that the victim’s injuries were not consistent with being stabbed
in the head with a fixed blade. His injuries were consistent with being slammed against a
car window that shattered. He admitted no glass had to be removed from the victim’s
head. Bales had not been involved in a prior case involving a single puncture wound
from glass. He denied that even if the victim was moving, that such an injury came from
a knife blade.
Defendant testified on his own behalf. He had a previous conviction for domestic
violence. On December 29, 2019, defendant was at Barrow’s house. He saw the victim
next door and Barrow said he needed to talk to him. Barrow went next door to talk to the
victim. Defendant jumped over the fence to get next door. Defendant wanted to talk to
the victim because he heard he was selling marijuana laced with bath salts and a girl had
been hospitalized. Defendant wanted to confront the victim. After he jumped the fence,
he stood beside Barrow who was talking to the victim. The victim grabbed defendant and
threw him.
9 Barrow confronted the victim as to why he had thrown defendant. The victim hit
Barrow in the side of the head. Barrow responded by pushing him into a nearby SUV
and the window broke. Barrow hit the victim. Defendant thought everything was over
and started to run. He saw one of the victim’s family members run up with a knife in his
hand. The victim was already in the house and defendant stood outside in the street. The
victim’s family members called his group the “N” word and cussed at him. Defendant
grabbed a golf club and hit one of their cars. He insisted he was in Barrow’s yard when
the police arrived; he did not leave. He never talked to the police because they never
asked to speak with him.
When he first spoke with Deputy Valenciano she asked him if he was present at a
stabbing. He did not know what she was talking about because he claimed no one was
stabbed during the incident with the victim. He was in Palm Springs sometime around
the time of the incident. Defendant denied he had a knife during the incident. He did not
say anything to the victim that day; he never threatened to kill him or told him he was
going to die. Defendant insisted it was only a fight between the victim and Barrow, and
no one was stabbed.
DISCUSSION
A. INSUFFICIENT EVIDENCE
Defendant contends the evidence was insufficient to support his conviction of
(1) assault with a deadly weapon not a firearm, and (2) making criminal threats.
10 1. STANDARD OF REVIEW
The California Supreme Court has stated that in assessing a sufficiency of the
evidence claim, “the court must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980)
26 Cal.3d 557, 578.) “ ‘“ ‘Once such evidence is found, the substantial evidence test is
satisfied. [Citation.] Even when there is a significant amount of countervailing evidence,
the testimony of a single witness that satisfies the standard is sufficient to uphold the
finding.’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 711.) The testimony of “a single
witness is sufficient to uphold a judgment even if it is contradicted by other evidence,
inconsistent or false as to other portions.” (People v. Leigh (1985) 168 Cal.App.3d 217,
221; see also People v. Wetle (2019) 43 Cal.App.5th 375, 388.)
2. ASSAULT WITH A DEADLY WEAPON
Defendant argues there was no substantial, credible evidence presented that he was
in possession of a knife and stabbed the victim, to support that he committed assault with
a deadly weapon.
“The crime of assault with a deadly weapon has two components: ‘(1) the assault,
and (2) the means by which the assault is committed.’ ” (In re Raymundo M. (2020) 52
Cal.App.5th 78, 85 (Raymundo).) “For purposes of assault with a deadly weapon under
section 245(a)(1), ‘a “deadly weapon” is “any object, instrument, or weapon which is
used in such a manner as to be capable of producing and likely to produce, death or great
11 bodily injury.” [Citation.] Some few objects, such as dirks and blackjacks, have been
held to be deadly weapons as a matter of law; the ordinary use for which they are
designed establishes their character as such. [Citation.] Other objects, while not deadly
per se, may be used, under certain circumstances, in a manner likely to produce death or
great bodily injury.’ [Citation.] ‘Because a knife can be, and usually is, used for
innocent purposes, it is not among the few objects that are inherently deadly weapons.’
[Citation.] ‘In determining whether an object not inherently deadly or dangerous is used
as such, the trier of fact may consider the nature of the object, the manner in which it is
used, and all other facts relevant to the issue.’ ” (Id., at pp. 85-86.)
Here, aunt called 911 immediately following the incident. She told the 911
operator that the people next door had “stabbed my nephew.” She also stated that the
“little one” who had jumped the fence had stabbed the victim. She could not describe the
size of the knife but only stated that it was shiny. At trial, the victim testified that
defendant pulled a knife out of his waistband and swung at him. He felt the pain of the
knife going into his head. The victim was certain at trial that defendant was holding a
knife and described it as a fixed-blade knife with an eight-inch blade. The victim’s
mother testified at trial that she observed defendant jump over the fence between the two
properties and pull a knife out of his waistband. She described the knife as being eight
inches long. Defendant stabbed the victim in the head with the knife. The victim had a
gash on his head as a result. The trial court was shown photographs of the injury.
In finding the evidence supported that defendant committed assault with a deadly
weapon, the trial court did not think that the victim and his mother had a motive to lie.
12 He recognized that the victim’s mother may be biased, but she clearly identified
defendant as being present at the scene. Further, the victim and his mother corroborated
each other on the details of the incident. The trial court believed that the victim and his
mother saw a knife and had no motive to lie. It was consistent that defendant would
threaten to kill the victim while holding a knife. The trial court also found that defendant
was not credible based on him changing his story about the incident several times.
Finally, the trial court did not believe that the victim would have received a wound on the
back of his head from being slammed into the car window.
The evidence supports the trial court’s conclusion that defendant had the knife and
committed assault on the victim. The victim stated when Deputy Cosper arrived that
defendant had a knife and had stabbed him. The victim had blood on his head and a
puncture wound. Aunt also stated on the 911 call that the victim had been stabbed.
Based on this testimony, the trial court could conclude that defendant had stabbed the
victim and caused the injury to the victim’s head, supporting defendant’s conviction of
assault with a deadly weapon.
Defendant relies on the inconsistencies in the testimony given by the victim and
his mother. However, “ ‘Conflicts and even testimony which is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence.’ ” (People v. Lee
(2011) 51 Cal.4th 620, 632.)
13 Defendant refers to the 911 call and insists that the victim could not describe the
knife to aunt on the day of the incident. However, the person speaking with aunt was
never identified on the 911 call. Such speculation that it was the victim and he could not
identify the knife is not supported by the record. Further, defendant complains about the
victim’s statement to Deputy Cosper that the victim could only identify the knife as shiny
and steel. He also points to the victim being asked about the preliminary hearing
testimony in which he only described the knife as being shiny.4 Defendant contends that
if the victim truly saw a knife, he would have been able to describe it. The victim was
adamant at trial that he saw a knife and was able to describe it. The trial court reasonably
could believe that the victim saw something in defendant’s waistband, and that it was in
fact a knife based on the puncture wound to the victim’s head. We will not reassess the
victim’s credibility on appeal as it was the trial court’s duty to assess his credibility.
(People v. Lee, supra, 51 Cal.4th at p. 632.)
Further, defendant claims that, based on his expert Bales’s testimony, the stabbing
was a “physical impossibility.” Bales testified he would have expected that a blow to the
head with the knife described by the victim would be a lethal blow and that his injury was
not consistent with a knife wound. At one point, however, Bales described the wound as
a “small cut” and also as a “puncture wound.” Bales also admitted that knives can cause
puncture wounds and that no glass was removed from the victim’s head; but that his prior
4 Defendant refers to all of the testimony at defendant’s preliminary hearing but it was not all admitted at trial. Only portions of the preliminary hearing testimony were discussed at trial.
14 experience with glass wounds resulted in “flayed open” wounds and not puncture
wounds.
Bales never testified it was a “physical impossibility” that the victim was stabbed.
Rather, he testified that he would have expected a different type of wound and that the
blow would have been lethal. However, the trial court relied upon the photograph of the
wound, witness testimony, and that the wound could not have been caused by the glass
breaking. Such conclusion is supported by the evidence.
Based on the evidence before the trial court, it could reasonably conclude that
defendant had stabbed the victim in the head to support his conviction of assault with a
deadly weapon.
3. CRIMINAL THREATS
Defendant insists his criminal threats conviction in count 2 was not supported by
substantial evidence as the threat did not cause the victim to be in sustained fear based on
defendant’s threats.
The elements of a criminal threat under section 422 are as follows: “The
prosecution must prove ‘(1) that the defendant “willfully threaten[ed] to commit a crime
which will result in death or great bodily injury to another person,” (2) that the defendant
made the threat “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,” (3) that the threat—which may be
“made verbally, in writing, or by means of an electric communication device”—was “on
its face and under the circumstances in which it [was] made, . . . so unequivocal,
unconditional, immediate, and specific as to convey to the person threatened, a gravity of
15 purpose and an immediate prospect of execution of the threat,” (4) that the threat actually
caused the person threatened “to be in sustained fear for his or her own safety or for his
or her immediate family’s safety,” and (5) that the threatened person’s fear was
“reasonabl[e]” under the circumstances.’ ” (In re George T. (2004) 33 Cal.4th 620, 630;
People v. Toledo (2001) 26 Cal.4th 221, 227-228; see also § 422.)
“A threat is sufficiently specific where it threatens death or great bodily injury. A
threat is not insufficient simply because it does ‘not communicate a time or precise
manner of execution, section 422 does not require those details to be expressed.’ ”
(People v. Butler (2000) 85 Cal.App.4th 745, 752.) “[I]t is the circumstances under
which the threat is made that give meaning to the actual words used. Even an ambiguous
statement may be a basis for a violation of section 422.” (Id. at pp. 753-754.)
“ ‘Sustained fear’ refers to a state a mind.” (People v. Fierro (2010) 180
Cal.App.4th 1342, 1349 (Fierro).) “[A] victim can experience sustained fear even if the
fear exists only during the incident itself, as long as the fear during the incident is more
than ‘momentary, fleeting, or transitory.’ ” (People v. Brugman (2021) 62 Cal.App.5th
608, 634.)
In Fierro, the court concluded there was substantial evidence the victims felt
“sustained fear” when a father and son got into an argument with defendant at a gas
station and heard the defendant say, “ ‘I will kill you . . . right now,’ ” and lifted up his
shirt to reveal a weapon. Both victims were afraid that the defendant was going to shoot
them. (Fierro, supra, 180 Cal.App.4th at pp. 1345-1346, 1349.) The Fierro court found
that even a single minute of fear, during which the victim heard the threat and saw the
16 weapon, qualified as “sustained” under the statute. (Id. at p. 1349.) “When one believes
he is about to die, a minute is longer than ‘momentary, fleeting, or transitory.’ ” (Ibid.)
Based on the statements made by defendant and the surrounding circumstances,
there was sufficient evidence of a violation of section 422. Defendant pulled a knife from
his waistband. The victim had just been pushed into the SUV by Barrow. At that point,
defendant said he was going to kill the victim and the victim was going to die. The
victim specifically testified that he was in fear when defendant made those statements.
As in Fierro, the threat, along with seeing the knife in defendant’s hand, was sufficient to
support that the victim was in sustained fear of his life. Defendant then rushed toward
the victim and stabbed him in the head. This was more than sufficient evidence to
support that the victim’s fear was more than momentary or fleeting.
Defendant claims that his words were not the cause of fear for the victim because
at the time he said the words, Barrow had already pushed him into the SUV and
defendant was supposedly coming at him with a knife. However, the testimony from the
victim was clear that when defendant was holding the knife and told him that he was
going to kill him, he was scared. Defendant tries to distinguish the victims’ fears in
Fierro, supra, 180 Cal.App.4th 1342 by claiming there was no direct testimony from the
victim that he was afraid of defendant’s words. However, we see no difference in this
case from Fierro. The showing of the weapon in each case occurred simultaneously with
the threat to kill. The victim specifically stated he was in fear when defendant had the
knife in his hand and threatened to kill him.
17 Substantial evidence supports that the victim’s fear of defendant when he held a
knife to him and threatened to kill him was more than “ ‘momentary, fleeting, or
transitory’ ” (Fierro, supra, 180 Cal.App.4th at p. 1349.) The evidence supports
defendant’s conviction of making criminal threats.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends his counsel should have presented the victim’s inconsistent
preliminary hearing testimony on the question of whether he lost consciousness and
therefore did not see defendant stab him, and that he had previously testified that he could
not recall if Barrow or defendant had the knife. These inconsistent statements were
admissible pursuant to Evidence Code section 1235. The People insist the issue is better
raised in a habeas corpus petition based on there being no explanation from counsel as to
why the statements were not admitted, and the prior inconsistent statements are not
readily available in the record. We disagree with the People as to the unavailability of
the prior testimony, as the preliminary hearing testimony is part of the record. However,
since there is no explanation from counsel for the reasons the statements were not
admitted, we agree this claim is better raised in a habeas corpus petition.
1. ADDITIONAL FACTUAL HISTORY
The prosecutor had to obtain an order compelling the victim’s appearance at the
preliminary hearing. The victim testified about the events of December 29, 2019. He
identified defendant and said that defendant was a member of Westside PJ. He stated that
two of the men pushed him against a car. He testified, “I get hit in the head. I kind of
black out a little bit. When I come to, I got blood, like, coming all up from my head and
18 all over my face.” He was asked further about being pushed into the car. The victim
responded, “Like I said, I blacked out. You know what I mean? When I came to, I had
blood all over me already.” The victim was asked, “Do you remember telling Deputy
Cosper that one of the men was holding a knife in their right hand?” He responded,
“Yeah.” The victim also stated that “I remember seeing the knife, but I mean, they
were—it was, like, in the middle of both of them, and they were both coming at me, and I
had no time to, like—you know what I mean?” The victim was asked if he remembered
getting stabbed anywhere on his body, and he responded, “Like I said, it happened really
fast, you know. And I’m sure, like, when it happened, that’s what made me black out,
close my eyes, or maybe adrenaline. Close my eyes. Whatever it was.”
The victim later said he remembered being hit and that it felt like a “penetrative,
contactive blow.” He felt the knife penetrating his head. He lifted his hand to feel the
wound. The victim also identified defendant as being the one who stabbed him with the
knife. The victim stated he had threats on his life about testifying at the preliminary
hearing. He was scared for his own safety. He clarified that he went unconscious or
closed his eyes after he was stabbed in the head.
During the victim’s trial testimony, the following exchange occurred:
“[Defense Attorney:] As you sit here today, you’re telling me that you don’t recall
how many times you were stabbed in the head?
“[The Victim:] I know the first time I got stabbed in the head it was a surreal
feeling, so I was trying to get out of there. I wasn’t trying to get hurt any more.
19 “[Defense Attorney:] And isn’t it true that when you were at the preliminary
hearing, you testified you said that, in fact, Mr. Barrow hit you so hard against the glass
of that vehicle that you momentarily blacked out? Do you remember saying that?”
“[The Victim:] I remember saying something of the sort where I needed to—I
needed to—I needed to sum up the answer. I needed to explain what that was. And that
was a surreal moment. It wasn’t a blackout. It wasn’t a lose consciousness. It was a
moment of understanding that things were going—were real—getting real at the moment
as far as I got stabbed in the head and my aunt was on top of me pushing this guy off of
me.
“[Defense Attorney:] Let me stop you there. Now, when you testified at the
preliminary hearing, you said you didn’t remember who had the knife. Do you remember
saying that?
“[The Victim:] I did not say I remember who had the knife. I remember saying he
had something shiny in his waistband and that whether or not he had pulled it out and
used it.”
The victim was later asked, “All right, but you said earlier though when you got
hit, you sort of blacked out or you had a kind of out-of-body experience?” The victim
responded, “I didn’t say black. I said like surreal moment.” He was asked, “Surreal
moment. Where you kind of weren’t registering what was going on. Is that safe to say?”
The victim stated, “I was fully registering everything that was going on. I was
understanding that I had just got struck in the head with a knife.”
20 2 ANALYSIS
“The standard for showing ineffective assistance of counsel is well settled. ‘In
assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s
representation fell below an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice to a reasonable
probability, that is, a probability sufficient to undermine confidence in the outcome.
[Citations.] A reviewing court will indulge in a presumption that counsel’s performance
fell within the wide range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy. Defendant thus bears the
burden of establishing constitutionally inadequate assistance of counsel.’ ” (People v.
Gray (2005) 37 Cal.4th 168, 206-207 (Gray); see also Strickland v. Washington (1984)
466 U.S. 668, 687.)
“If the record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more
appropriately raised in a petition for writ of habeas corpus.” (Gray, supra, 37 Cal.4th at
p. 207.)
The record does not illuminate the reasons why counsel chose not to introduce the
preliminary hearing testimony at trial. Defendant does not argue that there was no
satisfactory explanation for counsel’s failure to seek the actual testimony from the
preliminary hearing be admitted. In fact, defendant acknowledges that counsel did cross-
21 examine the victim by asking about his preliminary hearing testimony but complains that
trial counsel did not seek to admit the victim’s statements from the preliminary hearing.
The record does not shed light on why counsel failed to seek to admit the exact
statements the victim made at the preliminary hearing. While we may surmise that since
the victim later clarified his statements at the preliminary hearing, counsel may have felt
their admission was not helpful to defendant. However, we will not speculate, and as
such, defendant has not met his burden of establishing ineffective assistance of counsel
on appeal. The claim is better addressed in a habeas corpus petition. (Gray, supra, 37
Cal.4th at p. 207.)
C. SECTION 654
Defendant insists his assault with a deadly weapon and criminal threats
convictions in counts 1 and 2 occurred in a single transaction. The trial court erred by
refusing to stay his 16-month sentence on count 2.
1. ADDITIONAL FACTUAL BACKGROUND
Defendant submitted a sentencing memorandum. Defendant argued that section
654 applied to the convictions based on the charges arising out of the same act and they
occurred contemporaneously. The court should stay the penalty for the criminal threats
conviction.
At the sentencing hearing on March 15, 2021, the trial court considered the
probation report and defendant’s sentencing memorandum. The trial court asked the
prosecutor to address whether count 2 should be stayed. The prosecutor argued that
count 2 was a separate act. The trial court found, “As for the sentence itself, I disagree
22 with [defense counsel] as to staying Count 2. I don’t think it qualifies under 654. I think,
again, telling someone that you’re going to kill them is not part and parcel of a 245 with a
knife. That type of language certainly again increases the amount of harm and makes the
situation even worse. To say those sorts of words can and did I know frighten the victim
even more as he’s being assaulted in his own home no less, his driveway, where he lives.
It’s supposed to be a place of safety. So there’s no basis at least in my opinion that Count
2 should be stayed.”
Defendant was then sentenced to the upper term of eight years on the assault with
a deadly weapon conviction in count 1. The trial court then sentenced defendant to one
year four months on the criminal threats conviction in count 2, and it was ordered to run
consecutive to the charge in count 1.
2. ANALYSIS
Section 654 provides, in relevant part, “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” (Former § 654, subd. (a).)5 The
statute “expressly prohibits separate punishment for two crimes based on the same act,
but has been interpreted to also preclude multiple punishment for two or more crimes
5 Section 654 had been modified since sentencing in this case, effective January 1, 2022, to read “An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.” (Stats. 2021, c 441 (A.B. 518), § 1, eff. Jan. 1, 2022, italics added.) The change does not impact the issue raised on appeal.
23 occurring within the same course of conduct pursuant to a single intent.” (People v.
Vargas (2014) 59 Cal.4th 635, 642.)
“Whether a defendant may be subjected to multiple punishment under section 654
requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may
include not only a discrete physical act but also a course of conduct encompassing several
acts pursued with a single objective. [Citations.] We first consider if the different crimes
were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be
punished more than once for that act. Only if we conclude that the case involves more
than a single act—i.e., a course of conduct—do we then consider whether that course of
conduct reflects a single ‘ “intent and objective” ’ or multiple intents and objectives.”
(People v. Corpening (2016) 2 Cal.5th 307, 311.)
“The question whether section 654 is factually applicable to a given series of
offenses is for the trial court, and the law gives the trial court broad latitude in making
this determination. Its findings on this question must be upheld on appeal if there is any
substantial evidence to support them.” (People v. Hutchins (2001) 90 Cal.App.4th 1308,
1312.)
Defendant was holding the knife when he threatened the victim that he was going
to kill him. We have already concluded that this caused the victim to be in fear of his
life. Defendant then stabbed the victim. These two acts were separate. Moreover, the
evidence supports that defendant harbored separate objectives.
In Raymundo, supra, 52 Cal.App.5th 78, the defendant and several other young
men approached another young man on the street. The defendant was holding a knife and
24 chased after the young man. He yelled to the young man when he got close to him that
he was “ ‘ going to die today.’ ” (Id. at p. 83.) The trial court sentenced the defendant on
the criminal threats in addition to the assault conviction. On appeal, the defendant argued
that the trial court should have stayed the criminal threats sentence because it was
duplicative of the assault conviction. (Id. at p. 83, 94.)
The appellate court held that the trial court “could reasonably have found that [the
defendant] committed the assault with the objective of inflicting physical harm on [the
victim], whereas [the defendant] criminally threatened [the victim] with the separate
objective of inflicting mental or emotional harm.” (Raymundo M., supra, 52 Cal.App.5th
at p. 95.) Citing to several other cases that held the same, the court observed, “[c]ourts
routinely recognize similar distinctions.” (Ibid.)
This case is similar to Raymundo. While holding the knife, defendant told the
victim that the victim was going to die and that the defendant was going to kill him. He
then stabbed the victim in the head. The trial court reasonably concluded the threat,
“increase[d] the amount of harm” and “frighten[ed] the victim even more as he’s being
assaulted in his own home no less, his driveway, where he lives.” The trial court’s
reasons are similar to the conclusion in Raymundo, that the threat had a separate objective
of causing mental or emotional harm. The trial court properly imposed consecutive
sentences on counts 1 and 2.
D. SB 567
Defendant contends that SB 567’s amendment to section 1170, subdivision (b),
requires remand for resentencing in order for the trial court to reconsider his sentence
25 under the new law. The People contend remand is unnecessary as any conceivable error
the trial court made in imposing the upper term was harmless beyond a reasonable doubt.
In his sentencing memorandum, defendant argued there were several mitigating
factors, including the factors relating to the crime. He argued he was not the primary
aggressor and the injuries sustained by the victim were not severe. Further, defendant
argued factors relating to defendant in mitigation included that he had an insignificant
criminal record for which he had never served more than two years in prison. Further, a
lengthy prison sentence would not serve the ends of justice.
Defendant was sentenced on March 15, 2021. The trial court had read the
probation report and letters submitted by defendant. The probation report listed the
following aggravating factors: (1) the crime involved great violence, great bodily harm
or other acts disclosing a high degree of cruelty, viciousness, or callousness; (2) he was
armed with a weapon at the time of the crime; (3) he had engaged in violent conduct that
indicated a serious danger to society; (4) his prior convictions as an adult were numerous
or of increasing seriousness; (5) he had served a prior prison or county jail term; (6) he
was on probation or parole at the time the crimes was committed; and (7) his prior
performance on probation or parole was unsatisfactory. There were no factors in
mitigation. The probation report also listed defendant’s prior convictions beginning in
2006. Defendant was convicted of the prior serious and violent felony conviction he
admitted in this case in 2017, and was released on parole on June 17, 2018.
26 Defendant’s sister, his aunt and his mother all provided letters that stated he had a
substance abuse problem and would benefit from treatment. They also asked the trial
court to have mercy on defendant. Defendant’s counsel was requesting a sentence of four
years. The prosecution requested that the trial court impose the upper term on count 1,
doubled for the strike, for a total of eight years; and that count 2, which should be one
year four months, run consecutive to count 1. The prosecutor recommended that the
sentence on the five-year prior conviction—found true pursuant to section 667,
subdivision (a)(1)—be stayed. The trial court noted that the probation department had
recommended a sentence of 14 years 4 months, which would require imposition of the
sentence on the serious prior conviction.
The trial court told defendant, “I don’t intend to max you out, sir. [¶]
[Defendant], I don’t doubt everything that people have said about you. I don’t doubt that
at all. I think all of those letters are sincere. I think your letter to me was sincere. I agree
with all of those things. To some degree though, my hands are a little tied at this point.
And I hope you recognize that.” The trial court further stated, “Once I actually hear the
facts of the case and we get—and there’s a conviction, then we get this far, then, you
know, then my hands become tied to some degree.” Defendant was ineligible for
probation because of his criminal record. Further, he had failed several times in
rehabilitation programs. The trial court felt that stabbing “someone in the head with a
knife is a serious and violent felony.” Based on defendant’s record, the trial court noted
that it would not strike the prior.
27 The trial court again stated that it did not agree with the probation report that
defendant should be maxed out on his sentence. The trial court praised defendant for
having shown remorse and insight into his behavior. “I’m not looking to put you in
prison for as long as possible. That is not my goal here.” The trial court agreed the five-
year prior should be stayed.
In imposing the upper term on count 1, the trial court noted, “Your record doesn’t
warrant low term. The mitigating circumstances are next to none other than you’ve
shown semi-remorse, which I appreciated, which is getting your nickel prior stayed.
Other than that—and not being the primary aggressor in the beginning, although what
you end up doing is a lot more serious than what the other person did. I’ll say that.” It
found the aggravating circumstances outweighed the mitigating circumstances.
In imposing sentence, the trial court relied on defendant’s criminal record, which
dated back to 2006. The trial court had reviewed his history in the probation report.
Defendant had a prior serious or violent felony conviction, which he admitted and was
recent. The trial court considered the current assault conviction to be a serious and
violent felony conviction. The trial court concluded that the aggravating factors
outweighed the mitigating factors and imposed the upper term on count 1.
2. APPLICATION OF SB 567
SB 567 amended section 1170, effective January 1, 2022. It allows the trial court
to impose an upper term sentence under only certain circumstances. Effective January 1,
2022, section 1170, subdivision (b)(1) provides “When a judgment of imprisonment is to
be imposed and the statute specifies three possible terms, the court shall, in its sound
28 discretion, order imposition of a sentence not to exceed the middle term, except as
otherwise provided in paragraph (2).” (Fn. omitted.) Subdivision (b)(2) provides, “The
court may impose a sentence exceeding the middle term only when there are
circumstances in aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true beyond a reasonable
doubt at trial by the jury or by the judge in a court trial. Except where evidence
supporting an aggravating circumstance is admissible to prove or defend against the
charged offense or enhancement at trial, or it is otherwise authorized by law, upon
request of a defendant, trial on the circumstances in aggravation alleged in the indictment
or information shall be bifurcated from the trial of charges and enhancements. The jury
shall not be informed of the bifurcated allegations until there has been a conviction of a
felony offense.”
At the time of defendant’s sentencing in March 2021, section 1170, subdivision
(b), gave the trial court discretion in selecting a lower, middle, or upper term after
considering the record, the probation officer’s report, and other evidence. (Former
§ 1170, subd. (b) [“The court shall select the term which, in the court’s discretion, best
serves the interests of justice”].) However, under the newly amended law, the trial court
may only impose an upper term sentence where the facts underlying all of the
aggravating circumstances have been stipulated by the defendant or found true beyond a
reasonable doubt by a jury or court trial. (§ 1170, subd. (b)(2).)
29 There is an exception to the requirement of the jury or court finding the
aggravating circumstances true beyond a reasonable doubt. Under section 1170,
subdivision (b)(3), the trial court, “may consider the defendant’s prior convictions in
determining sentencing based on a certified record of conviction without submitting the
prior convictions to a jury.” (§ 1170, subd. (b)(3).) However, section 1170, subdivision
(b)(5), provides in pertinent part, “The court may not impose an upper term by using the
fact of any enhancement upon which sentence is imposed under any provision of law.”
(§ 1170, subd. (b)(5).)
Initially, the People agree that the provision applies retroactively. SB 567’s
amendments to section 1170, subdivision (b), lessens punishment, and there is no
indication that the Legislature intended it to apply prospectively only. As such, the new
law must be retroactively applied. (See In re Estrada (1965) 63 Cal.2d 740, 744-745;
People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)
Here, the trial court did find that defendant committed the crime of assault with a
deadly weapon with a knife. However, the trial court did not separately determine the
truth of the aggravating factors beyond a reasonable doubt as required by the amendment
to section 1170. The People contend that such failure to consider the truth of the
aggravating factors was harmless beyond a reasonable doubt. The People insist that the
certified records, if obtained, would support the trial court’s reasons for imposing the
upper term. We choose to remand for resentencing rather than address the People’s
argument for the reasons stated post.
30 Neither of the parties have addressed that the trial court stayed the sentence on the
section 667, subdivision (a)(1), serious felony enhancement. Prior to January 1, 2019,
trial courts were required to impose a properly pleaded and proven enhancement under
section 667, subdivision (a)(1). (People v. Jordan (2006) 141 Cal.App.4th 309, 319.)
However, the law was changed to provide trial courts with discretion to dismiss such
enhancements, or to strike the punishment therefor, “in the furtherance of justice.”
(Former, § 1385, subd. (b).) The current version of section 1385, effective January 1,
2022, does not authorize the stay of a sentencing enhancement but allows the trial court
to dismiss the punishment for the enhancement under section 1385, subdivision (b)(1).
(Stats. 2021, c 721 (S.B. 81), § 1, eff. Jan. 1, 2022.) As such, since defendant’s case is
still pending on appeal, defendant’s sentence is unauthorized. Additionally, it is not clear
whether the trial court would choose to impose or strike the enhancement, or strike the
punishment, even though it mentioned it did not want to max out defendant’s sentence, as
it also refused to strike the prior conviction.6
Based on the changes made by SB 567 to section 1170, and that the record does
not shed light on whether the trial court would have struck or imposed the five-year prior
if had known it could not stay the enhancement, remand to the trial court for resentencing
is the appropriate remedy.
6 We also note that there are several factors in section 1385 that prohibit imposition of an enhancement, which may be applicable to defendant’s section 667, subdivision (a)(1) prior. (See § 1385, subdivision (c)(1).)
31 DISPOSITION
Defendant’s sentence is vacated and remand for resentencing is ordered in
accordance with this opinion. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.