Error and/or relief
The court imposed the wrong sentence for the consecutive term.
First Holding:
In one count, the defendant was convicted of second degree robbery (sec. 211). At sentencing, the trial court imposed an aggravated term of five years, which was ordered to be served consecutively at a subordinate term of one year four months. Because the robbery was a second degree felony, the middle term is three years in prison. As such, the consecutive subordinate term must be one-third the middle term, or one year. Thus, the sentence on that count must be reduced from 16 months to one year. We may correct this unauthorized sentence on appeal without remanding for a full resentencing.
Authority:
PEN 1170.1(a)
PEN 1260
People v. Lawley (2002) 27 Cal.4th 102, 171–172
Second Holding:
The defendant argues that he should have been charged with only one count of attempting to dissuade a witness rather than the 10 charged and found true. The ten calls all occurred on the same day over a span of six hours. The issue is whether appellant may be lawfully subject to multiple convictions. We review this claim de novo.
Authority:
PEN 954
People v. Duffy (2020) 51 Cal.App.5th 257, 261
Third Holding:
Section 954 defines what charges can be joined in one action. This statute does not permit multiple convictions for the same offense based on the same act or course of conduct. However, section 954 authorizes multiple convictions for different or distinct offenses. As a result, a defendant may be convicted of multiple counts of the same crime, such as grand theft, based on separate and distinct criminal acts, even if the acts were all part of a single overarching scheme.
Authority:
PEN 954
People v. Vidana (2016) 1 Cal.5th 632, 650
People v. Whitmer (2014) 59 Cal.4th 733, 74
Fourth Holding:
Determining whether a defendant has committed one or more criminal acts requires identifying what the Legislature intended to punish as a single offense under the relevant statute. Courts refer to this inquiry as determining the statute’s unit of prosecution. Courts should look to the characteristics of the crime, including both (1) the factual circumstances of the defendant’s criminal conduct and (2) the elements of the crime as defined by the Legislature in the relevant statute.
Authority:
Moore v. Superior Court (2020) 57 Cal.App.5th 441, 461
People v. Wilson (2015) 234 Cal.App.4th 193, 199-200
People v. Whitmer (2014) 59 Cal.4th 733, 744 (conc. opn. of Liu, J.)
Fifth Holding:
Section 136.1(a)(2) makes it a crime to knowingly and maliciously attempt to prevent or dissuade a witness from attending or giving testimony at a trial, proceeding or inquiry authorized by law. In relevant part, malice is defined under this statute as an intent to thwart or interfere in any manner with the orderly administration of justice. This crime is completed upon any attempt.
Authority:
PEN 136.1
People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519
Sixth Holding:
A trial court’s decision whether to impose consecutive or concurrent sentences is reviewed for an abuse of discretion. A defendant bears the burden to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, a reviewing court presumes the trial court acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on appeal. Moreover, a decision will not be reversed merely because reasonable people might disagree. Instead, the decision must be so irrational or arbitrary that no reasonable person could agree with it.
Authority:
PEN 669(a)
People v. Giminez (1975) 14 Cal.3d 68, 71–72
People v. Carmony (2004) 33 Cal.4th 367, 376–377
Seventh Holding:
Once a trial court lawfully decides to impose consecutive sentences on convictions for violating section 136.1, section 1170.15 applies. If a person is convicted of a felony, and of an additional felony that is a violation of section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony the Penal Code provides that those subordinate terms shall consist of the full middle term.
Authority:
PEN 1170.15
Eighth Holding:
In relevant part, the rule against the dual use of facts prohibits a trial court from relying on the same fact “to impose both the upper term and a consecutive sentence. Only a single factor in aggravation is needed to support imposition of an upper term. Likewise, only one relevant and sustainable fact may explain a series of consecutive sentences. We presume the trial court acted to achieve legitimate sentencing objectives
Authority:
People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12
People v. Osband (1996) 13 Cal.4th 622, 730
People v. Carmony (2004) 33 Cal.4th 367, 376-377
Ninth Holding:
There is a developing split of authority regarding application of the forfeiture doctrine regarding the low term presumption under section 1170(b)(6). We need not decide that issue. Although the court did not specifically mention subdivision (b)(6), we presume it knew of that provision.
Authority:
People v. Achane (2023) 92 Cal.App.5th 1037, 1039, 1044 [forfeiture doctrine applied when defendant failed to raise in the trial court the presumption in favor of a lower term]
People v. Fredrickson (2023) 90 Cal.App.5th 984, 994, fn. 8 [sec. 1170 mandates application of the lower term presumption and is not subject to forfeiture]People v. Caparrotta (2024) 103 Cal.App.5th 874, 905
Tenth Holding:
Under the cumulative error doctrine, errors that are individually harmless may nevertheless have cumulative prejudice. A claim of cumulative error is essentially a due process challenge. The issue is whether the defendant received a fair trial. Here, appellant’s claim of cumulative prejudice is without merit because we have rejected the individual claims. After reviewing the entire record, we are confident that appellant received due process throughout the entire proceeding, including sentencing.
Authority:
In re Avena (1996) 12 Cal.4th 694, 772, fn. 32
People v. Rivas (2013) 214 Cal.App.4th 1410, 1436
People v. Bradford (1997) 14 Cal.4th 1005, 1057
People v. Cunningham (2001) 25 Cal.4th 926, 1009 [a defendant is “entitled to a fair trial but not a perfect one”]