Filed 12/20/19 P. v. Trimino CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEJANDRO TRIMINO,

Defendant and Appellant.

F075988

(Super. Ct. No. BF166685A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Timothy L. O’Hair, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Defendant Alejandro Trimino was convicted after a jury trial of various violent crimes against his girlfriend and her daughter, including burglary, robbery, assault with a deadly weapon, and making criminal threats. On appeal, he contends: (1) the trial court erroneously admitted evidence of prior acts of domestic violence under Evidence Code section 1109; (2) the phrase “and/or” in the jury instruction for the two counts of making a criminal threat erroneously reduced the prosecution’s burden of proof; (3) the jury instruction for assault with a deadly weapon contained an improper legal theory; (4) he was erroneously punished twice for the same crime in violation of Penal Code section 654; (5) the matter should be remanded for resentencing to allow the trial court the opportunity to exercise its discretion to strike his prior serious felony conviction enhancements pursuant to newly enacted Senate Bill No. 1393; and (6) his three prior prison term enhancements must be stricken pursuant to newly enacted Senate Bill No. 136.

We agree with Trimino’s fifth and sixth contentions only, and we accordingly remand for resentencing. In all other respects, we affirm.

STATEMENT OF THE CASE

In a second amended information, the Kern County District Attorney charged Trimino with burglary (§ 460, subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2 [victim Y.H.]), two counts of criminal threats (§ 422; counts 3 [victim Y.H.] & 4 [victim A.R.]), false imprisonment (§§ 236, 237, subd. (a); count 5), robbery (§ 212.5, subd. (a); count 6), two counts of misdemeanor contempt of court (§ 166, subd. (a)(4); counts 7 & 9), and misdemeanor battery (§ 243, subd. (e)(1); count 8). As to all felony counts, it was alleged Trimino had suffered three prior convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), § 1170.12, subds. (a)–(d)), had suffered three prior serious felony convictions (§ 667, subd. (a)), and had served three prior prison terms (§ 667.5, subd. (b)). As to count 1 and counts 3 through 6, it was alleged Trimino used a deadly weapon—a knife (§ 12022, subd. (b)(1); and as to counts 1, 5, and 6, it was further alleged Trimino used a deadly weapon—a hammer (§ 12022, subd. (b)(1)).

The jury convicted Trimino on all counts and found true all of the section 12022, subdivision (b)(1) allegations. Trimino waived his right to a jury trial on the prior conviction allegations. Following a court trial, the court dismissed one prior prison term allegation (§ 667.5, subd. (b)) as to all six felony counts, as well as the three prior serious felony convictions (§ 667, subd. (a)) alleged in count 5. The court found the remaining prior conviction allegations true.

Trimino was sentenced to an aggregate term of 75 years to life in prison plus 50 years as follows: On count 2, he received 25 years to life pursuant to the Three Strikes law, plus five years for each of three prior serious felony conviction enhancements, plus one year for the prior prison term enhancement. On both counts 3 and 4, he received 25 years to life pursuant to the Three Strikes law, plus five years for each of the three prior serious felony conviction enhancements, plus one year for the prior prison term enhancement, and one year for the use of a deadly weapon enhancement. Sentencing on counts 1, 5, and 6 was stayed pursuant to section 654. On both counts 7 and 9, the court imposed a concurrent term of 180 days.

On July 12, 2017, Trimino timely filed a notice of appeal.

FACTS

I. Prosecution’s Evidence

Trimino and Y.H. had been in an on-again-off-again relationship for about three years beginning in 2014. Trimino was physically and verbally abusive toward Y.H. In December 2016, Y.H. was living in a small rented house (the house) in Bakersfield with Trimino, her daughter A.R., and A.R.’s husband. Two other tenants, a man called “Biscuit” and a girl named Stephanie, lived in a trailer behind the house. Trimino stopped living in the house on a regular basis in September 2016 but continued to regularly come over. A.R. paid virtually all of the rent for the house, with Biscuit and Stephanie sometimes contributing. Trimino never contributed any money towards the rent.

During their relationship, Y.H. and Trimino would fight and break up once or twice per month on average. Trimino would leave the house after each break up but would always return after a few days. After each breakup, Y.H. felt she could not keep Trimino away. If Trimino wanted to stay the night at the house, Y.H. felt there was nothing she could do to prevent him from staying.

In November 2016, A.R. purchased a car, but she could not drive due to a physical limitation. Y.H. would drive A.R. places in the car. A.R. sometimes lent the car to Trimino. At some point in time, A.R. and Trimino agreed Trimino would buy the car if he could ever come up with the money. However, Trimino never tendered the money to A.R.

The December 15, 2016 Incident

On December 15, 2016, Y.H. and A.R. were at the house with Y.H.’s friend, K.L., when Trimino knocked on the front door. Y.H. had a restraining order in effect against Trimino at this time. Y.H. opened the door but did not want Trimino to enter the house. Trimino pushed the door open, entered the house, and said he was going to get his clothes. Y.H. went back into the kitchen to wash dishes.

Trimino went straight to the bathroom where A.R. was and asked if her husband was there. Trimino was acting aggressively. After A.R. said her husband was not there, Trimino pulled a hammer and a knife from his back pocket and demanded the keys and papers to A.R.’s car. He told A.R. if she did not let him have the car keys and papers, he would “bust [her] head open” with the hammer. He threatened to kill everyone and burn the house down if he did not get the keys and papers or if anyone called the police. He repeated the threats approximately 10 times while holding the knife and hammer.

Y.H. testified on direct examination regarding what happened next as follows: Y.H. went to go see what was going on in the bathroom, at which point Trimino pushed her onto the pullout bed in the living room and put her face down. While Trimino was yelling at A.R. to give him the car keys and papers, he began hitting Y.H. in the back of her left shoulder and arm with the knife. He poked her twice with the knife and slapped her twice with the knife’s blade. The knife left red marks on Y.H., but she was not cut or bleeding. He called her a bitch while hitting her and said he was going to kill her, and Y.H. believed him. Trimino then made Y.H. lie face down on the floor. Y.H. testified A.R. then “had to get up and give [Trimino] the keys and the papers to the car;” however, Y.H. did not actually see A.R. give Trimino the keys. She kept her face down on the floor because Trimino told her he would hit her again if she lifted her head.

On cross-examination, Y.H. testified as follows: After Trimino came into the house and went toward A.R., Y.H. went to go see what was going on and Trimino told her to go sit down. A.R. then went into her bedroom and closed the door. Trimino began banging on the door with the hammer and eventually cracked a hole in the door. A.R. came out of the bedroom and Trimino made her sit on a chair near Y.H. Trimino then put Y.H. face down on the bed and commenced hitting her with the knife, then put her face down on the floor. A.R. and K.L. were sitting in the living room while Trimino was striking Y.H. with the knife.

A.R.’s account of those same events is as follows: After Trimino came into the house and threatened to “bust [A.R.’s] head open” with the hammer if she did not give him the keys and papers, A.R. went to her bedroom to retrieve them. However, she decided to lock herself in the bedroom once she was inside. Trimino started banging on the door with the hammer and broke the door handle. He said he would kill them if A.R. did not do what he said. At one point in her testimony, A.R. said she gave Trimino the keys and paperwork while they were in her bedroom together. Trimino then took A.R. from her bedroom into the living room and sat her on the pullout bed next to Y.H. At a different point in her testimony, A.R. said she had the keys and papers when she went into the living room and then gave them to Trimino. She was scared and did not want to leave her bedroom. After she sat down near Y.H., Trimino put Y.H. face down on the floor and began striking her with the knife. Trimino stopped his attack on Y.H. only after he heard a noise.

After hearing that noise, Trimino realized the gate in front of the house was open. He told K.L., who was also sitting in the living room, to go outside and close the gate. He also told K.L. not to do anything stupid. While K.L. was outside closing the gate, Trimino got up and moved towards the front door, at which point A.R. ran for the front door and was able to get past Trimino and outside into the yard. Trimino tackled A.R. in the front yard and tried to push her back into the house. A.R. yelled to the watching neighbors to call the police, but Trimino told them to not listen to A.R. because she was crazy.

Y.H. was still lying on the floor in the living room when she realized she was alone in the house. She reached for a phone and called 911. She went outside during the 911 call and saw Trimino leaving in A.R.’s car. A.R. and K.L. were across the street asking a neighbor for help.

At some point between December 15 and 25, 2016, Trimino asked a tow service owner, Moises Flores, to tow A.R.’s car from a gas station to a specified address. While Flores was towing the car, Trimino informed him that he could not pay for the tow. Flores and Trimino agreed Flores would buy the car from Trimino for $50 to $80, plus the tow services. Trimino gave Flores the keys and papers. At some point, both police and Y.H.’s friends recovered the vehicle.

Trimino returned to the house later on Christmas Day. A.R. called the police and he was arrested. At trial, Y.H. said she was still afraid of Trimino.

Prior Acts of Domestic Violence

At trial, three prior acts of domestic violence by Trimino against Y.H. were introduced. The first occurred on September 8, 2014. Trimino returned home to get his clothes after having been gone for a week, but Y.H. would not let him in. He got mad, picked up a brick, and hit her in the head with it. She had a bump on her head and was bleeding a little. Trimino was convicted of misdemeanor assault with a deadly weapon (§ 245, subd. (a)(1)).

The second act occurred in April 2015. Trimino got mad at Y.H. for not lending him her car and started beating her and hitting her in the face. Y.H. was left with a knot on her head and an injury above her right eye. Police were called and pictures of her injuries were taken; the jury in the instant case saw these photographs. Trimino was convicted of misdemeanor spousal abuse (§ 273.5, subd. (a)).

The third act occurred on July 3, 2016. Trimino, who had not been home for three days, came home yelling and screaming. He picked up a knife, placed it in his belt, and asked where Biscuit was. He said he was going to find Biscuit and kill him. Y.H. told Trimino she was going to call the police. He then pushed her onto the bed, pulled out the knife, and asked her if she wanted him to “poke [her] too.” He then left.

II. Defense Evidence

Kern County Probation Officer Clayton Christiansen was Trimino’s probation officer in 2016. In April 2016, Christiansen went to the house and contacted Trimino, Y.H., and A.R. Y.H. said Trimino would be staying in the house temporarily and she had no problem with his staying there. Later in 2016, Christiansen called Trimino on the phone and spoke with him about where he was going to be living because he could not stay at the house due to an active restraining order. Christiansen also spoke with Y.H. during that call and told her the restraining order forbade Trimino and her from living in the house together. Christiansen got the impression that Y.H. did not have a problem with Trimino living with her.

A.L. was Y.H.’s neighbor. A.L. had known Y.H. for a year and Trimino for six months. A.L. testified Y.H. and Trimino lived together in Y.H.’s house and Y.H. called Trimino her husband. Trimino would leave the house approximately every other week and be gone for about a week before returning; Y.H. would drive to pick Trimino up and bring him back. Y.H. and Trimino appeared to be in a relationship and would go places together. A.L. was present with Y.H. and A.R. when A.R. purchased the car. Lorenzo saw both Y.H. and Trimino drive the car and saw Trimino perform mechanical work on the car.

DISCUSSION

I. Evidence Code Section 1109

Trimino challenges the trial court’s admission under Evidence Code section 1109 of the evidence related to the three separate acts of domestic violence. He argues the evidence was “unnecessary, cumulative, and unduly prejudicial.” We disagree.

A. Standard of Review and Applicable Law

“The admissibility of evidence of domestic violence is subject to the sound discretion of the trial court, which will not be disturbed on appeal absent a showing of an abuse of discretion.” (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.)

Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s disposition to commit such acts. (Evid. Code, § 1101.) But the Legislature has created exceptions to this rule in cases involving sexual offenses (Evid. Code, § 1108) and domestic violence (Evid. Code, § 1109). The California Supreme Court has held Evidence Code section 1108 conforms with the requirements of due process. (People v. Falsetta (1999) 21 Cal.4th 903, 915–916 (Falsetta ).) Moreover, the analysis in Falsetta has been used to uphold the constitutionality of Evidence Code section 1109. (See People v. Price (2004) 120 Cal.App.4th 224, 240–241; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310.)

Evidence Code section 1109 provides (subject to certain exceptions not applicable here) that in a criminal domestic violence action, evidence of the defendant’s commission of other domestic violence is admissible character evidence under Evidence Code section 1101 if such evidence is not inadmissible pursuant to Evidence Code section 352. (Evid. Code, § 1109.) Evidence Code section 352 affords the trial court discretion to exclude evidence if its probative value is “substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “[T]he court’s exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Brown (2011) 192 Cal.App.4th 1222, 1233.)

B. Analysis

First, Trimino contends the prior acts evidence was “unnecessary” because the victims, Y.H. and A.R., “cooperated fully and testified fully.” This contention seems to paradoxically suggest the balance of the evidence was strong enough on its own to convict him. But Trimino then contradicts himself by explaining how he was prejudiced by the admission of the prior acts evidence because the balance of the evidence “was not overwhelming.” If the balance of the evidence was not overwhelming, then surely the prior acts evidence was not unnecessary. Trimino’s argument here is internally inconsistent and does not help his cause.

Second, Trimino’s argument the prior acts evidence was cumulative also falls flat because none of the prior acts evidence was repetitive of other evidence and the testimony on the prior acts evidence was brief, consisting of only 10 pages of transcript.

Third, we cannot say the probative value of the prior acts evidence was substantially outweighed by the danger of undue prejudice. The three prior acts of domestic violence all involved domestic violence against Y.H. by Trimino and had occurred within the prior two years three months. Thus, the prior acts were similar in nature to the matters relating to Y.H. in this case and probative of Trimino’s propensity to engage in acts of domestic violence, particularly against Y.H. (See People v. Johnson (2010) 185 Cal.App.4th 520, 531–532 [“ ‘ “The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense” ’ ”].)

Moreover, the evidence of the prior acts was not inflammatory as compared to the evidence of the current offenses. None of Y.H.’s injuries from any of the prior incidents were significantly worse than her injuries from the December 15, 2016 incident, and Y.H. did not sustain any injuries from the third prior act. The jury was shown photographs of the injuries from just one of the prior incidents.

Additionally, the evidence of the prior acts was circumscribed. The jurors were instructed via CALCRIM No. 852 that they may, but were not required to, conclude from the prior acts that Trimino had a propensity to commit domestic violence, and they were also instructed that they could not convict Trimino of any of the current offenses based on the prior acts alone.

Lastly, the evidence of the current crimes was strong, which lessened the possibility that the jury would be swayed by evidence of the prior acts. Y.H. and A.R.’s respective accounts of what transpired that day were substantively consistent and varied only on minor details.

Under these circumstances, we cannot conclude the trial court abused its broad discretion in concluding that the probative value of Trimino’s three prior acts of domestic violence against Y.H. was substantially outweighed by the danger of undue prejudice.

II. Criminal Threat Instruction

With respect to counts 3 and 4, making criminal threats (§ 422), Trimino contends the trial court’s inclusion of the phrase “and/or” in the jury instruction erroneously reduced the prosecution’s burden of proof. We disagree.

A. The Instruction

The trial court instructed the jury with CALCRIM No. 1300 in relevant part as follows:

“The defendant is charged in Counts 3 and 4 with having made a criminal threat in violation of Penal Code section 422.

“To prove that the defendant is guilty of this crime, the People must prove that:

“1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to [Y.H.] and/or [A.R.];

“2. The defendant made the threat orally;

“3. The defendant intended that his statement be understood as a threat;

“4. The threat was so clear, immediate, unconditional, and specific that it communicated to [Y.H.] and/or [A.R.] a serious intention and the immediate prospect that the threat would be carried out;

“5. The threat actually caused [Y.H.] and/or [A.R.] to be in sustained fear for her own safety or for the safety of her immediate family;

“AND

“6. The fear of [Y.H.] and/or [A.R.] fear was reasonable under the circumstances.”

The jury was further provided with CALCRIM No. 3515, instructing that each count charged in the case constituted a separate crime and the jury had to consider each count separately and return a separate verdict on each count. The jury was also instructed with CALCRIM No. 3550 which provided in part: “Your verdict on each count must be unanimous. This means that, to return a verdict, all of you must agree to it.”

Trimino contends the trial court’s insertion in CALCRIM No. 1300 of the phrase “and/or” when referring to counts 3 and 4 made the language of the instruction ambiguous and thereby lowered the prosecution’s burden of proof. His argument suggests the jury could have found a criminal threat was made only to one victim, as well as insufficient evidence to sustain each element of section 422 as to the second victim, yet still return a verdict of guilty as to the second victim merely because CALCRIM No. 1300 used the phrase “and/or.” We reject this contention.

B. Interpretation of the Phrase “And/Or”

The question of whether a challenged instruction accurately conveys the legal requirements of a particular offense is one of law and is reviewed de novo on appeal. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) “In reviewing a claim of instructional error, the court must consider whether there is a reasonable likelihood that the trial court’s instructions caused the jury to misapply the law in violation of the Constitution.” (Ibid.) When evaluating on appeal the trial court’s instructions to the jury, the instructions should be read and considered as a whole. (People v. Smith (2008) 168 Cal.App.4th 7, 13.) There is a presumption that jurors of normal intelligence are capable of understanding and following the trial court’s instructions. (People v. Osband (1996) 13 Cal.4th 622, 714 (Osband); People v. Van Winkle (1999) 75 Cal.App.4th 133, 147–148.)

Further instructions are not required for common, ordinary words presumed to be within the understanding of a person of ordinary intelligence. (People v. Wade (1995) 39 Cal.App.4th 1487, 1495–1496.) Instructions to the jury are flawed only if there is a reasonable likelihood the jury misconstrued or misapplied the words of the instruction. (Id. at p. 1491; People v. King (2010) 183 Cal.App.4th 1281, 1316.) In determining the likelihood instructions were misconstrued by the jury, we consider the specific language challenged, the instructions as a whole, and the jury’s findings. (People v. Cain (1995) 10 Cal.4th 1, 36.)

Trimino argues the phrase “and/or” permitted the satisfaction of one element as to one victim to carry over disjunctively to the other victim as to that same element. In other words, his argument suggests the phrase “and/or” permitted the jury to mix and match elements of CALCRIM No. 1300 for the two victims. We disagree with this construction. To the contrary, we find the phrase “and/or” as used by the trial court in CALCRIM No. 1300 to have one unmistakable meaning: the jury could find appellant guilty either of making a criminal threat only to Y.H., a threat only to A.R., or a threat to both victims. Stated another way, the jury could find appellant guilty either of count 3 or count 4, or both counts 3 and 4.

Trimino asserts the evidence of his guilt was not overwhelming, implying that the prosecution’s case was factually weak as to counts 3 and 4. He cites defense counsel’s arguments to the jury regarding Y.H.’s and A.R.’s purported inability to specifically describe the threats made to them. However, the record is replete with Trimino’s numerous threats to kill them and burn the house down. According to A.R., Trimino repeated his threat to kill them about 10 times. A.R. also testified Trimino threatened to hit her in the head with a hammer if she did not give him the keys and papers to her car.

Trimino also argues the victims’ respective accounts of what happened were inconsistent. Again, he is incorrect. As we have already explained, the victims’ stories were consistent in the important details and differed slightly only with respect to the chronology of events. There was substantial evidence both victims were threatened with death or great bodily injury. We therefore find it highly unlikely that the jury would have found a criminal threat was made only to one victim, as well as insufficient evidence a criminal threat was made to the second victim, yet still return a verdict of guilty as to the second victim merely because CALCRIM No. 1300 used the phrase “and/or.”

Moreover, the jury was instructed with CALCRIM Nos. 3515 and 3550. These instructions explained to the jury that each count was a separate crime that had to be considered separately, that the jury had to return a separate verdict as to each count, and that the jury’s verdict had to be unanimous. Additionally, the prosecutor in closing argument walked the jury through all six elements of CALCRIM No. 1300 to show how the elements were satisfied as to Y.H. in count 3, and then went through the elements once more for A.R. in count 4.

Reading the instructions as a whole and considering the prosecutor went through the elements of CALCRIM No. 1300 twice, we find there is no reasonable likelihood the jury misunderstood the findings it had to make with regard to counts 3 and 4.

III. Assault with a Deadly Weapon Instruction

Trimino was charged with assault with a deadly weapon, specifically, a knife, against Y.H. The court presented the jury with two possible theories of guilt: (1) that the knife was inherently deadly or dangerous, and (2) that Trimino used the knife in a deadly way. Trimino contends that, because knives are not inherently deadly as a matter of law, the trial court’s instruction erroneously contained an improper legal theory.

At the threshold, the People contend Trimino forfeited this issue by failing to raise it before the trial court. On the merits, the People concede the instruction contained an improper theory, but they contend the error was a factual error, as opposed to a legal one. In turn, they argue a factual error is presumptively harmless when, as here, another factually correct theory remains. Finally, the People contend that, in any event, the error was harmless beyond a reasonable doubt.

We conclude the instructional error was a legal error subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18 (Chapman). We conclude the error was harmless beyond a reasonable doubt here. Since we conclude the error was not prejudicial, we need not address the forfeiture issue.

A. Jury Instructions and Closing Arguments

The trial court instructed the jury with CALCRIM No. 875, which read in pertinent part as follows:

“The defendant is charged in Count 2 with assault with a deadly weapon other than a firearm, to wit, a knife ….

“To prove that the defendant is guilty of this crime, the People must prove that:

“1. The defendant did an act with a deadly weapon other than a firearm, to wit, a knife, that by its nature would directly and probably result in the application of force to a person;

“2. The defendant did that act willfully;

“3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;

AND

“4. When the defendant acted, he had the present ability to apply force with a deadly weapon other than a firearm, to wit, a knife, to a person. [¶] … [¶]

“The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.

“The touching can be done indirectly by causing an object to touch the other person. [¶] … [¶]

“No one needs to have actually have been injured by defendant’s act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was.

“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

“A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.”

With respect to the personal use of a deadly weapon allegation in the count 3 charge for criminal threats against Y.H., the court instructed the jury with CALCRIM No. 3145 as follows, in part:

“A deadly or dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous, or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.

“In deciding whether an object is a deadly weapon, consider all the surrounding circumstances, including when and where the object was possessed, and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose.” (See CALCRIM No. 3145.)

The court did not define the meaning of “inherently deadly or dangerous.”

During closing arguments, the prosecutor made the following statements to the jury regarding element 1 of CALCRIM No. 875:

“A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that’s used in such a way that it is capable of causing and likely to cause death or great bodily injury. Sounds very similar to the one we already heard about the personal use of a deadly weapon.

“So in this particular element what you are asked to decide is whether or not the knife that the defendant had in his hand is a deadly weapon in this case, and I submit to you that it is not only for the purpose of that it can be used to stab someone but also you have to consider the manner that it was used in and also hitting [Y.H.] with it, the threats that were made with it, consider all of the circumstances surrounding its use.

“The terms ‘force’ and ‘apply force’ mean to touch in a harmful or offensive manner. If we look back at Element 1, the defendant did an act with a deadly weapon, in this case the knife, that by its nature would directly and probably result in touching in a harmful or offensive manner. So did the defendant touch [Y.H.] in a harmful or offensive manner with that knife[?]

“If you look below, again, the slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through their clothing, is enough. The touching does not have to cause pain or injury of any kind. The touching can be done indirectly by causing an object to touch the other person. The People are not required to prove that the defendant actually touched someone.

“So I don’t even have to prove that he actually hit her with the knife. But what I would submit to you, ladies and gentlemen, is that the marks on her body, the photographs that you saw, indicate that not only did he assault her with it but he, in fact, touched her. So we are going above and beyond what is actually required by this element. [¶] … [¶]

“So as for Element No. 1 the defendant did an act with a deadly weapon. He took that knife, and he hit [Y.H.] with it multiple times. And you see in the photographs the multiple different welts that she had on her body from that knife. You also see in the photographs the photo of the knife itself that was left at the front door. If you look closely at those photographs, you can see the outline of the actual knife. And when you look at that knife, you can see how it would line up with the injuries that she has there on herself.”

Defense counsel made the following remarks to the jury during closing arguments:

“And I will say this as well about assault with a deadly weapon. So there’s two things. If a weapon is designed to be a deadly weapon, the use of that weapon is assault with a deadly weapon. If something is not designed to be a deadly weapon, then it has to be used in such a way that it could result in deadly harm or great bodily injury.

“So my favorite example of this, because I think it makes the most sense, a belt is not designed to be a deadly weapon. If a belt is being used around someone’s neck to choke them, now it is being used as a deadly weapon.

“So I argue to you that the type of use is important for this charge under what has been alleged. And that the knife we are talking about is not designed to be a deadly weapon. It is designed to be a kitchen knife. So the fact that the use alleged is so minor is relevant to the charges.”

B. Legal Error and Standard of Review

“ ‘As used in section 245, subdivision (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 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. 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.’ ” (People v. Aledamat (2019) 8 Cal.5th 1, 6 (Aledamat).)

Knives—because they are designed to cut things and not people—are not inherently dangerous or deadly instruments as a matter of law. (People v. McCoy (1944) 25 Cal.2d 177, 188.) “While a knife is not an inherently dangerous or deadly instrument as a matter of law, it may assume such characteristics, depending upon the manner in which it was used ….” (Ibid.)

Accordingly, the trial court erred in presenting the jury with two theories by which it could find the knife a deadly weapon: (1) inherently or (2) as used. The first theory was incorrect, but the second was correct. (Aledamat, supra, 8 Cal.5th at p. 7.)

Our Supreme Court recently decided in Aledamat that a trial court commits legal error, rather than factual error, when it erroneously permits the jury to consider a weapon to be inherently dangerous when such weapon is not, as a matter of law, inherently dangerous. (Aledamat, supra, 8 Cal.5th at p. 8.) The court further held in that case that such legal error—also called alternative–theory error—is subject to the harmless error test articulated in Chapman, supra, 386 U.S. 18, under which “[t]he reviewing court must reverse the conviction unless, after examining the entire case, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt.” (Aledamat, at p. 13.)

C. Application of Standard of Review

In Aledamat, the California Supreme Court analyzed the same instructional error we have here, under substantially similar facts. The court concluded the error was harmless beyond a reasonable doubt, and because of the similarity between this case and Aledamat, we are bound to apply the same analysis.

In Aledamat, the “[d]efendant pulled a box cutter out of his pocket and extended the blade; from three or four feet away, [he] thrust the blade at the [victim] at waist level, saying, ‘I’ll kill you.’ ” (Aledamat, supra, 8 Cal.5th at p. 4.) Like Trimino, the defendant was charged with assault with a deadly weapon (§ 245, subd. (a)(1)) and making a criminal threat (§ 422). (Ibid.) It was also alleged, as in Trimino’s case, the defendant personally used a “deadly and dangerous weapon” (§ 12022, subd. (b)(1)) during the commission of the criminal threat. (Ibid.) The case went to a jury trial. (Ibid.) The jury received the same instruction as Trimino’s jury with respect to the assault charge—CALCRIM No. 875—as well as the same instruction with respect to the use of a deadly weapon allegation in connection with the criminal threats charge—CALCRIM No. 3145. The jury returned guilty verdicts on both counts and found true the use of a deadly weapon allegation. (Aledamat, 8 Cal.5th at pp. 4-5.)

After concluding the instructional error was a legal error reviewable under the harmless beyond a reasonable doubt standard, the Supreme Court concluded the error was harmless beyond a reasonable doubt. The court explained that the language from the CALCRIM No. 3145 instruction—requiring the jury to “ ‘consider all of the surrounding circumstances including when and where the [weapon] was possessed and any other evidence that indicates whether the [weapon] would be used for a dangerous rather than a harmless purpose’ ”—suggested that the question of whether a weapon was inherently dangerous was “unitary” because “the jury had to consider all of the circumstances in deciding whether the object was a deadly weapon, either inherently or as used.” (Aledamat, supra, 8 Cal.5th at p. 14.) In turn, the court felt “[t]he jury would likely view the ‘inherently deadly’ language in light of this additional instruction that it had to consider all of the circumstances.” (Ibid.) The court ultimately concluded that, given the additional instruction with CALCRIM No. 3145, it would “seem[] unlikely the jury would simply view the [weapon] as inherently deadly without considering the circumstances, including how defendant used it.” (Ibid.)

The Supreme Court in Aledamat acknowledged that, because the trial court did not define the term “inherently deadly,” it is possible the jury “might have applied its common understanding” to find the box cutter deadly because it was sharp and used for cutting. (Aledamat, supra, 8 Cal.5th at p. 15.) However, even if the jury did so, “it would necessarily find the box cutter deadly in the colloquial sense of the term–i.e., readily capable of inflicting deadly harm—and that defendant used it as a weapon.” (Ibid.)

Applying the court’s analysis in Aledamat to this case, we must conclude the error here was harmless beyond a reasonable doubt. If the jury found true that Trimino used his knife as a deadly weapon in making his criminal threat to Y.H., we find it extremely unlikely the jury did not also find that he used his knife as part of his assault on her, especially since the criminal threat and assault occurred closely in time.

IV. Section 654

The trial court imposed consecutive sentences on counts 2 (assault with a deadly weapon against Y.H.) and 3 (making a criminal threat against Y.H.). Trimino contends his sentence on count 2 should have been stayed under section 654. He argues the assault was only an incidental means to make the criminal threat, and he harbored only the single objective to threaten Y.H. We conclude there was substantial evidence the criminal threat and assault were separate acts with separate objectives, and therefore the imposition of consecutive sentences was proper.

A. Sentencing Hearing

At sentencing, defense counsel requested that the sentences on all counts either be stayed or run concurrently because there was one course of conduct. The prosecutor submitted on the probation officer’s recommendation that counts 2, 3, and 4 be run consecutively because there were two victims as well as an extended course of conduct and multiple acts. The trial court ordered the terms on counts 2 through 4 to run consecutively because “the crimes involved separate acts of violence or threats of violence.”

B. Applicable Law

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.” (§ 654, subd. (a).) 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 occurring within the same course of conduct pursuant to a single intent.” (People v. Vargas (2014) 59 Cal.4th 635, 642; accord, People v. Harrison (1989) 48 Cal.3d 321, 335.) Determining “[w]hether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry ….” (People v. Corpening (2016) 2 Cal.5th 307, 311.) “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.” (Ibid.) “If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267–268 (Cleveland).)

When a trial court sentences a defendant for two crimes without suspending the sentence for one, it implicitly finds the acts involved more than one objective. (Osband supra, 13 Cal.4th at pp. 730–731.) The trial court below stated when it imposed consecutive sentences on counts 2 and 3 that “the crimes involved separate acts of violence or threats of violence,” but the court did not state whether the crimes involved separate objectives. However, we presume the court implicitly found the crimes involved separate objectives.

“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.) Under substantial evidence review, we review the evidence in the light most favorable to the judgment and presume the existence of every fact that could reasonably be deduced from the evidence. (Cleveland, supra, 87 Cal.App.4th at p. 271.) We “affirm the trial court’s ruling, if it is supported by substantial evidence, on any valid ground.” (People v. Capistrano (2014) 59 Cal.4th 830, 886, fn. 14, overruled in part on another ground in People v. Hardy (2018) 5 Cal.5th 56, 103–104; accord, People v. Brents (2012) 53 Cal.4th 599, 618.)

C. Analysis

Although the parties in their briefing largely ignore the first step of the analysis and instead focus their discussions on the second, we must first decide whether there was substantial evidence to support a finding that the criminal threat and the assault against Y.H. were separate acts. Only if we conclude there was substantial evidence the acts were separate do we proceed to the second step in the analysis to determine if Trimino harbored separate objectives.

On the question of whether the crimes involved separate acts, we note that it is unclear which unlawful threat the jury based its verdict on as to count 3. None of the charging documents, jury instructions, prosecutor’s argument, or verdict forms indicates the basis for the conviction. However, where there are multiple bases on which the jury could find a defendant guilty of a specific crime, the trial court may impose punishment without knowing, for purposes of section 654, which particular basis or bases jurors agreed upon. (People v. McCoy (2012) 208 Cal.App.4th 1333, 1340.) “[I]n the absence of some circumstance ‘foreclosing’ its sentencing discretion …, a trial court may base its discretion under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts.” (Ibid.) Indeed, the trial court “may even rely on facts underlying verdicts of acquittal in making sentencing choices.” (Ibid.)

Here, the jury reasonably could have based its verdict on any one of a number of threats that occurred prior to Trimino putting Y.H. face down on the bed and commencing the knife assault. The evidence showed Trimino began making threats soon after entering the house and pulling out the hammer and knife. He threatened to kill Y.H. and A.R., threatened to burn the house down, and threatened at one point to “kill everyone in the house,” all the while wielding the hammer and knife. The house was described as “small,” and therefore Y.H. was close enough in the small house to reasonably be fearful for her daughter’s safety. Thus, there was substantial evidence that each of these threats: (1) was made to either Y.H. or A.R., or to both of them; (2) threatened death or serious bodily harm; (3) was intended to be understood as a threat; (4) communicated a serious intention and the immediate prospect of being carried out; and (5) caused Y.H. to be in reasonable and sustained fear for her or A.R.’s safety. Most importantly, substantial evidence shows these threats were made before Trimino put Y.H. face down on the bed and began striking her with the knife. Thus, the trial court reasonably could have found the verdict on count 3 was based on a threat Trimino made before commencing the knife assault. We therefore conclude that, for purposes of section 654, the criminal threat and the knife assault on Y.H. were separate acts.

We proceed to the second step of the analysis to determine whether there is substantial evidence to support the trial court’s implied finding that Trimino harbored separate objectives. Substantial evidence shows that Trimino’s objective when he came to the house that day was to obtain the keys and papers to A.R.’s car, and that the threats he made from the time he entered the house until the time he obtained those items were in furtherance of that objective. Substantial evidence further shows Trimino obtained the keys and papers from A.R. either while he was in A.R.’s bedroom with A.R. or immediately thereafter, but prior to the point when he told Y.H. to lie face down on the bed and began hitting her with the knife. Thus, Trimino obtained the keys and papers and thereby satisfied his objective before the assault began. In turn, the trial court reasonably could have found that Trimino harbored a separate objective for committing the knife assault—namely, to terrorize Y.H., as he had done several times in the past over the course of a violently abusive relationship.

Trimino’s chief contention is the knife assault “was an incidental means in an indivisible course of conduct with the intent and objective to threaten [Y.H.].” He explains the knife assault only served to convey to Y.H. the seriousness and immediacy of his threats. The problem with this argument is that it depends on the criminal threat and knife assault not being separate acts. However, as we have explained, there was substantial evidence to support a finding the criminal threat and knife assault were committed separately and with separate, not merely incidental, objectives.

The imposition of consecutive sentences on counts 3 and 4 did not violate the provisions of section 654.

V. Senate Bill No. 1393

Trimino contends his case must be remanded for resentencing in light of Senate Bill No. 1393 to allow the trial court an opportunity to exercise its discretion to strike his section 667, subdivision (a)(1) enhancements. The People concede, and we agree.

Prior to 2019, trial courts had no discretion to strike prior serious felony convictions for purposes of enhancement of a sentence under section 667. (Former § 1385, subd. (b).) Senate Bill No. 1393, which became effective January 1, 2019, removed this prohibition. (Stats. 2018, ch. 1013, §§ 1, 2; Cal. Const., art. IV, § 8, subd. (c).) The parties agree Senate Bill No. 1393 applies to Trimino because the statute is retroactive and applies to all cases not yet final as of its effective date. (In re Estrada (1965) 63 Cal.2d 740, 742 (Estrada); People v. Garcia (2018) 28 Cal.App.5th 961, 972 (Garcia).) On remand for resentencing, the trial court is to decide whether it should exercise its discretion to strike Trimino’s section 667, subdivision (a)(1) enhancements.

VI. Senate Bill. No. 136

In supplemental briefing, Trimino contends his one-year prior prison term enhancement imposed on counts 2, 3 and 4 pursuant to section 667.5, subdivision (b) must be stricken in light of Senate Bill No. 136 (2019¬–2020 Reg. Sess.; Sen. Bill No. 136), which was signed into law on October 8, 2019 and will become effective on January 1, 2020. Again, the People concede the issue, and we agree.

Senate Bill No. 136 amended section 667.5, subdivision (b) regarding prior prison term enhancements. Under section 667.5, subdivision (a), which remains unchanged, courts are required to impose a three-year sentence for each prior separate prison term served by the defendant where the prior and current offense was a violent felony, as defined in subdivision (c) of section 667.5. For other felonies, former section 667.5, subdivision (b) imposed an additional one-year term for each prior separate prison term or county jail felony term, except under specified circumstances. However, amended section 667.5, subdivision (b) imposes that additional one-year term only for each prior separate prison term served for a conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b).) Because neither of Trimino’s prior prison terms, including the one actually imposed, was served for a sexually violent offense, his section 667.5, subdivision (b) enhancement is now unauthorized under the amended statute.

The parties agree Senate Bill No. 136 applies to Trimino because the statute is retroactive and applies to all cases not yet final as of its effective date. (Estrada, supra, 63 Cal.2d at p. 742; Garcia, supra, 28 Cal.App.5th at p. 972.) A final judgment will not occur in this matter until 30 days after this opinion is issued. (Cal. Rules of Court, rule 8.366(b)(1).) If one or more parties file a petition for rehearing, the date of finality will be extended further. (Cal. Rules of Court, rule 8.268(b)(1)(A).) The parties will have 10 days after this decision becomes final to petition for review in the California Supreme Court. (Cal. Rules of Court, rule 8.500(e)(1).) Only after a petition for review has been adjudicated in the state court of last resort can a party then petition for a writ of certiorari in the United States Supreme Court. (U.S. Supreme Ct. Rules, rule 13(1) & (3).) For the purpose of determining the retroactive application of an amendment to a criminal statute, the finality of a judgment is extended until the time has passed for petitioning for a writ of certiorari in the United States Supreme Court. (People v. Vieira (2005) 35 Cal.4th 264, 305–306.) It is clear Trimino will not exhaust his appeal rights before January 1, 2020. Accordingly, on remand for resentencing, Trimino’s one-year prior prison term enhancement must be stricken.

DISPOSITION

The matter is remanded for resentencing. On remand, the trial court should (1) consider whether to exercise its discretion to strike Trimino’s prior serious felony conviction enhancements (§ 667, subd. (a)(1), (2) strike Trimino’s prior prison term enhancement (§ 667, subd. (b), and (3) resentence Trimino. In all other respects, the judgment is affirmed.

SNAUFFER, J.

WE CONCUR:

FRANSON, Acting P.J.

PEÑA, J.