Filed 12/31/19 P. v. Mixon-Givens CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DOMINIC JORRELL MIXON-GIVENS,

Defendant and Appellant.

H044705

(Santa Clara County

Super. Ct. No. B1580607 )
A jury found defendant Dominic Mixon-Givens guilty of human trafficking among other offenses. On appeal, defendant challenges the constitutionality of the human trafficking statute under which he was convicted and raises claims of sentencing error. While we reject defendant’s constitutional challenges to his human trafficking conviction, we agree that remand for resentencing is required.

I. BACKGROUND

A. Factual Summary

1. The Relationship Between Defendant and the Victim

Kristina L. ran away from home at the age of 14. In Reno, she met an older man who encouraged her to engage in prostitution; she did and that man became her first pimp. Over the next approximately 15 years, she engaged in prostitution on and off for multiple pimps. At one point, she stopped engaging in prostitution for a six-year stretch before returning to it.

Kristina first met defendant in 2012 through her then boyfriend. In 2015, Kristina was planning to drive from Reno to Berkeley. Defendant asked for a ride and she agreed. They rented a room in California together and discussed making some money. A couple of days after their arrival, Kristina began engaging in acts of prostitution with defendant acting as her pimp. Shortly thereafter, Kristina and defendant began a sexual relationship.

Kristina testified that she gave all the money she earned from prostitution to defendant. As a result, she had no money of her own and relied on him to buy everything from food to clothing. Defendant advertised Kristina’s prostitution services on-line and arranged dates with johns without consulting her, only telling her about them as the john was on his way. Defendant sometimes negotiated prices for Kristina’s dates. Defendant and Kristina traveled to different cities in the Bay Area for Kristina to engage in prostitution. Defendant largely determined where they would travel. For example, Kristina wanted to return to Reno but defendant wanted to stay in the Bay Area, so they stayed. A couple of times defendant told Kristina to walk the streets to look for customers. Kristina testified that sometimes defendant forced her to engage in acts of prostitution by calling johns to the room without her knowledge.

Defendant was physically abusive toward Kristina on a weekly basis. At trial, Kristina recounted some of the occasions on which defendant assaulted her. Once, defendant saw messages on Kristina’s phone to “somebody that [she] wasn’t supposed to be talking to”—an ex-boyfriend. Defendant reacted by barricading the door with furniture and then hitting Kristina on the back with his belt more than 10 times. Another time, defendant hit Kristina in the head and dragged her by her hair because he mistakenly believed she was communicating with another man online. On another occasion, defendant hit Kristina because he “thought [she] was with somebody [she] wasn’t supposed to be with.”

Defendant threatened to burn down Kristina’s grandmother’s house if Kristina left. He preferred to have his family members care for Kristina’s children while she was working, rather than Kristina’s family members. Kristina believed that was his preference because she could not easily leave if her children were with his family. Kristina testified that she feared for her safety and the safety of her family.

Despite that fear, Kristina did attempt to get away from defendant a couple of times. Once, while defendant was in jail, she planned to take a bus back to Reno. However, she missed the last bus before defendant was released. She testified that after he was out of custody she could not leave. Kristina’s other attempt to leave failed because defendant had her daughter.

2. The Initial Investigation

Sunnyvale Police Detective Matthew Hutchison arranged a date with Kristina as part of an unrelated investigation. He met her at a hotel where he arrested her and defendant in connection with that unrelated investigation. Inside the hotel room, Detective Hutchison found items consistent with prostitution, including condoms, lubricants, lingerie, and multiple cellphones.

Hutchison and another detective interviewed Kristina on July 1, 2015, while she was in custody. She was extremely reluctant to talk about defendant, with whom she said she had a boyfriend-girlfriend relationship. Both detectives inferred that Kristina’s reluctance was attributable to fear of defendant. Hutchison stayed in contact with Kristina after she was released from custody. She told him that “saying anything bad against [defendant] would get her in a lot of trouble.” She expressed fear for herself and her family.

Investigators discovered prostitution- and pimping-related posts on defendant’s Instagram and Facebook accounts. They also learned that defendant’s cell phone number was associated with advertisements on prostitution websites. Some of those advertisements featured pictures of Kristina.

3. The July 24, 2015 Incident

On July 24, 2015, Kristina and her daughter accompanied defendant to a court appearance in Palo Alto. During defendant’s court appearance, Kristina attempted to escape with her daughter. They ended up in the probation office where a probation officer told Kristina about a women’s shelter. That probation officer, who testified that Kristina appeared to be nervous and frightened, walked Kristina and her daughter out of the courthouse, intending to purchase food and diapers for the child and to get them public transportation to the shelter. They encountered defendant on the way. He ran toward them, yelling “What did you say bitch? What did you tell them?” Defendant punched and kicked Kristina, who ended up on the ground. The probation officer asked people in the area to help and to call 911. Defendant said, “Don’t call the police, bitch.” Defendant fled when police sirens became audible.

Subsequently, defendant was arrested. After his arrest, Kristina stopped working as a prostitute. She explained that it was easier to leave defendant after he had been taken into custody because she was able to “get away.”

4. Kristina’s Fear of Testifying

Kristina testified that she was afraid to testify. That fear was due in part to the fact the defendant’s friends and family had attempted to contact her in the weeks leading up to trial. She feared that those people might hurt her or her child. Kristina testified that defendant told her not to come to court.

5. Expert Testimony

a. Dr. Kimberly Mehlman-Orozco

Kimberly Mehlman-Orozco, Ph.D, a criminologist focusing on human trafficking, testified for the prosecution as an expert on human trafficking, including methods of control and responses by victims. Dr. Mehlman-Orozco testified that there frequently exists “a very intense emotional relationship” between human traffickers and their victims. The relationship may be a romantic one in which the victim believes she is in love with her exploiter. That relationship allows the human trafficker to control the victim and to avoid detection and conviction.

Dr. Mehlman-Orozco acknowledged on cross-examination that it can be difficult to distinguish between consenting prostitutes and sex trafficking victims.

b. Robert Royce

Robert Royce, a private investigator and former police officer, testified for the defense as an expert on human trafficking, pimping, pandering, and the investigation of those offenses. Royce distinguished between pimp-prostitute relationships and human trafficker-victim relationships. He opined that prostitutes have “many freedoms” including the freedom to choose their pimp. He opined that, by contrast, human traffickers seek to control and isolate their victims, who have no choice but to do as they are told.

B. Procedural History

On August 22, 2016, the Santa Clara County District Attorney filed an eight-count first amended information against defendant. It charged him with pimping (Pen. Code, § 266h, subd. (a); count 1) ; procuring an adult for prostitution (§ 266i, subd. (a)(1); count 2); human trafficking (§ 236.1, subd. (b); count 3); inflicting corporal injury on someone with whom the offender has a dating relationship (§ 273.5, subd. (a); count 4); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 5); attempting to dissuade a witness from reporting a crime (§ 136.1, subd. (b)(1); count 6); attempting to dissuade a witness from prosecuting a crime (§ 136.1, subd. (b)(2); count 7); and misdemeanor battery (§ 242-243, subd. (a); count 8). The first amended information alleged that defendant had previously been convicted of residential burglary in Nevada, which prior conviction allegedly constituted a strike (§§ 667, subds. (b)-(i), 1170.12) and a serious felony (§ 667, subd. (a)). Finally, the first amended information alleged that defendant had been released on bail during the commission of counts 4, 5, and 6. (§ 12022.1.)

The case proceeded to trial in August 2016. After deliberating for less than one day, the jury returned guilty verdicts on all counts.

A court trial on the prior conviction and out-on-bail allegations took place on September 7, 2016. With respect to the out-on-bail allegation, the trial court took judicial notice of a minute order showing that defendant had been released on supervised release in another case on July 2, 2015. As to the prior conviction, the court admitted into evidence certified copies of the information, the guilty plea, and the judgment in the Nevada case. The court found true that defendant had been convicted of residential burglary in violation of NRS 205.060(1)(4) and found that that offense qualified as both a prior strike and a prior serious felony. The court also found true the section 12022.1 out on-bail enhancement.

The trial court initially sentenced defendant on April 14, 2017. The court resentenced defendant on April 21, 2017 after the Probation Department pointed out an error in one of the sentencing triads the court had employed. At resentencing, the court imposed an aggregate prison term of 41 years. The court stated (and the abstract of judgment indicates) that the court imposed the midterm of 14 years on count 3, doubled to 28 years by the prior strike; the midterm of four years on count 1, doubled to eight years by the prior strike and stayed pursuant to section 654; the midterm of four years on count 2, doubled to eight years by the prior strike and stayed pursuant to section 654; a consecutive two years on count 4 (the midterm of one year doubled by the prior strike); a consecutive two years on count 5 (the midterm of one year doubled by the prior strike); a concurrent four years on count 6 (the midterm of two years doubled by the prior strike); a consecutive four years on count 7 (the midterm of two years doubled by the prior strike); and a consecutive five-year enhancement for the prior serious felony conviction. The court struck the additional punishment associated with the section 12022.1 on-bail enhancement pursuant to section 1385.

This timely appeal followed.

II. DISCUSSION

A. The Human Trafficking Statute is not Unconstitutionally Vague on its Face

Defendant maintains that the human trafficking statute under which he was convicted is unconstitutionally vague on its face. Specifically, he argues that the term “personal liberty,” as used in section 236.1, subdivisions (b) and (h)(3), is susceptible of multiple interpretations.

1. The Human Trafficking Statute

“Under California law, the crime of human trafficking [comprises] three distinct offenses, which are codified in section 236.1: (1) the deprivation or violation of the personal liberty of another with the intent to obtain forced labor or services (§ 236.1, subd. (a)); (2) the deprivation or violation of the personal liberty of another with the intent to violate one of several specified Penal Code provisions (§ 236.1, subd. (b)); and (3) causing or attempting to cause a person who is a minor to engage in a commercial sex act with the intent to violate one of several specified Penal Code provisions (§ 236.1, subd. (c)).” (People v. Shields (2018) 23 Cal.App.5th 1242, 1248-1249 (Shields).) The second listed offense is at issue here.

Section 236.1, subdivision (b) provides that “[a] person who deprives or violates the personal liberty of another” with the intent to effect or maintain a violation of various statutes that include pimping and pandering is guilty of human trafficking. (§ 236.1, subd. (b), italics added.) Section 236.1, subdivision (h) defines the phrase “[d]eprivation or violation of the personal liberty of another” as including “substantial and sustained restriction of another’s liberty accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, under circumstances where the person receiving or apprehending the threat reasonably believes that it is likely that the person making the threat would carry it out.” (§ 236.1, subd. (h)(3), italics added.)

Both of the foregoing provisions appeared in the human trafficking statute when the Legislature first enacted it in 2005. (Stats. 2005, ch. 240, § 7.) Punishment for the offense was increased significantly by Proposition 35, the Californians Against Sexual Exploitation Act (the CASE Act), which voters approved in November 2012. (Shields, supra, 23 Cal.App.5th at p. 1249; In re Aarica S. (2014) 223 Cal.App.4th 1480, 1486.)

2. Standard of Review and Governing Legal Principles

“We review de novo questions of interpretation and constitutionality of a statute.” (Finberg v. Manset (2014) 223 Cal.App.4th 529, 532.)

A challenge to the constitutionality of a statute on vagueness grounds is premised on the due process concept of fair warning. (People v. Hall (2017) 2 Cal.5th 494, 500.) To withstand such a void-for-vagueness challenge, a criminal statute must be sufficiently definite to inform people as to what conduct is prohibited and to provide standards for those enforcing the law (e.g., police, prosecutors, judges and juries). (People v. Morgan (2007) 42 Cal.4th 593, 605; Pryor v. Municipal Court (1979) 25 Cal.3d 238, 252 [“vague statutory language also creates the danger that police, prosecutors, judges and juries will lack sufficient standards to reach their decisions, thus opening the door to arbitrary or discriminatory enforcement of the law”].) “A statute is not vague if . . . any reasonable and practical construction can be given to its language. Reasonable certainty is all that is required.” (People v. Townsend (1998) 62 Cal.App.4th 1390, 1401 (Townsend).)

We apply principles of statutory construction to determine whether reasonable and practical construction can be given to the phrase “personal liberty.” In construing a statute, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose. (People v. Cornett (2012) 53 Cal.4th 1261, 1265.) “ ‘We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context . . . .’ The plain meaning controls if there is no ambiguity in the statutory language. [Citation.]” (Ibid.) “A statutory provision is ambiguous if it is susceptible of two reasonable interpretations.” (People v. Dieck (2009) 46 Cal.4th 934, 940.)

“ ‘A statute may contain a serious ambiguity; this will not in itself make the statute vague. New statutes, criminal as well as civil, frequently contain ambiguities. If that alone made them unconstitutionally vague, it would be difficult to enact new statutes. The objection to vague statutes is that they invite arbitrary and discriminatory enforcement by those who administer the statute. A statute that contains one or several ambiguities that can be dispelled at a stroke by interpretation is not open to that objection and therefore is not vague in the constitutional sense.’ [Citation.]” (Townsend, supra, 62 Cal.App.4th at pp. 1401.)

Statutory ambiguity may be resolved by application of established rules of statutory construction. Among those is the longstanding rule that “where the legislature uses terms already judicially construed, ‘the presumption is almost irresistible that it used them in the precise and technical sense which had been placed upon them by the courts.’ ” (City of Long Beach v. Marshall (1938) 11 Cal.2d 609, 620; People v. Hurtado (2002) 28 Cal.4th 1179, 1188 [same].)

3. Analysis

The phrase “personal liberty” is used in the false imprisonment statute (§ 236), which appears in Chapter 8 of Title 8 of Part 1 of the Penal Code along with the human trafficking statute. Specifically, section 236 defines false imprisonment as “the unlawful violation of the personal liberty of another.” In that context, “personal liberty” has been judicially construed to mean “free[dom] from physical restraint” or “freedom of movement.” (People v. Bamba (1997) 58 Cal.App.4th 1113, 1121, italics omitted.) As noted above, a strong presumption arises that when the legislature enacted section 236.1 in 2005 it intended for the words “personal liberty” to have the meaning ascribed to those same words by the Bamba court eight years earlier. Defendant offers nothing to rebut that presumption. To the contrary, he asserts that “a reasonable interpretation [of section 236.1] would be to harmonize [it] with . . . section 236 . . . .”

Accordingly, we construe the phrase “personal liberty” in section 236.1 as referring to freedom of movement or freedom from physical restraint. It follows that “[d]eprivation or violation of the personal liberty of another” includes the “substantial and sustained restriction of another’s” freedom of movement or freedom from physical restraint liberty “accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or [credible] threat of unlawful injury to the victim or to another person . . . .” (§ 236.1, subd. (h)(3).)

Defendant says section 236.1, subdivision (b) does not “define[] conduct so different from the pimping statute” to justify the increased penalties for human trafficking as compared to pimping. But as defendant himself acknowledges, “[c]learly, the difference between the two [offenses] is the violation of liberty.” And we have concluded that section 236.1, subdivision (b) is susceptible of a reasonable and clear construction. Thus, the similarities between the offenses of human trafficking and pimping do not render either statute unconstitutional. (See United States v. Batchelder (1979) 442 U.S. 114, 123 [“So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied”]; People v. Brown (2017) 14 Cal.App.5th 320, 337-340 [rejecting argument that § 236.1, subd. (c) is unconstitutionally vague because of overlap with the offense of pandering, reasoning that “[a]lthough defendant might have been both a panderer and a trafficker, that does not mean the prosecutor was obligated to charge him with the more lenient of the two offenses, nor that either of the two statutes is vague”].)

In sum, defendant has failed to demonstrate that section 236.1 subdivisions (b) and (h)(3) are unconstitutionally vague because a reasonable and practical construction may be given to them.

B. Defendant’s Human Trafficking Conviction is Supported by Substantial Evidence

Alternatively, defendant maintains that section 236.1 is unconstitutional as applied to him because the prosecutor failed to show that he deprived Kristina of her personal liberty. While couched as an as-applied constitutional challenge, defendant’s argument is better characterized as a sufficiency of the evidence challenge to his human trafficking conviction and we address it as such.

1. Standard of Review

“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)

2. Analysis

The question before us is whether substantial evidence supports the jury’s finding that defendant’s conduct effected a “substantial and sustained restriction” of Kristina’s freedom of movement “through force, fear, fraud, deceit, coercion, violence, duress, menace, or [credible] threat of unlawful injury to the victim or to another person . . . .” (§ 236.1, subd. (h)(3).) It does.

The evidence showed that defendant physically assaulted Kristina on a weekly basis, usually in retaliation for (real or perceived) attempts by her to communicate with others without defendant’s permission. There also was evidence that defendant explicitly threatened to harm Kristina’s family if she left. Defendant exercised control over Kristina’s access to her children and over her access to money, which jurors reasonably could have inferred prevented her from escaping (i.e., exercising her freedom of movement). Kristina testified that she feared defendant. That testimony was corroborated by the testimony of officers who interviewed Kristina and observed her apparent fear of discussing defendant. When Kristina was able to physically separate herself from defendant because of his incarceration, she stopped engaging in prostitution. The jury reasonably could have inferred from the foregoing evidence that defendant prevented Kristina from leaving him, thereby effecting a substantial and sustained restriction of her freedom of movement, through fear, coercion, violence, and credible threats of unlawful injury to herself and her family members. (See People v. Guyton (2018) 20 Cal.App.5th 499, 507 [concluding that substantial evidence supported the defendant’s conviction under section 236.1, subdivision (b) where the victim was not “in chains,” but feared the defendant, who isolated her, monitored her, and made her financially reliant on him].)

In defendant’s view, the evidence showed only that Kristina chose to be a prostitute, that he was her boyfriend and pimp, and that any violence in the relationship was motivated by jealousy. Even assuming jurors reasonably could have viewed the evidence as defendant does, that does not compel reversal. (See People v. Lindberg (2008) 45 Cal.4th 1, 27 [“If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding”].)

In sum, substantial evidence supports defendant’s human trafficking conviction.

C. Adjudication of Nevada Conviction as a Serious Felony and a Strike

Defendant further argues that the trial court erred when it found that his prior Nevada burglary conviction qualified as a prior strike and a prior serious felony. We agree.

1. Legal Principles

“California’s ‘Three Strikes’ law requires criminal sentences to be increased when a defendant has been convicted of one or more prior serious or violent felonies, or ‘strikes.’ ” (People v. Saez (2015) 237 Cal.App.4th 1177, 1193.) “A qualifying strike includes ‘[a] prior conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison . . . if the prior conviction in the other jurisdiction is for an offense that includes all of the elements of a particular . . . serious felony as defined in subdivision (c) of [s]ection 1192.7.’ ” (Ibid., quoting § 667, subd. (d)(2).) Among the serious felonies listed in section 1192.7, subdivision (c) is first degree burglary. (§ 1192.7, subd. (c)(18).)

“[D]eterminations about the nature of prior convictions are to be made by the court, rather than a jury, based on the record of conviction. [Citation.] . . . [T]he purpose of [this] limitation is to avoid forcing the parties to relitigate long-ago events, threatening defendants with ‘harm akin to double jeopardy and denial of speedy trial.’ [Citation.]” (People v. Gallardo (2017) 4 Cal.5th 120, 138 (Gallardo).)

Federal Constitutional principles, including the Sixth Amendment right to a jury trial, require that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum . . . be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) While that general rule does not apply to “the fact of a prior conviction” (ibid.), “[t]he jury trial right is violated when a court adds extra punishment based on factfinding that goes ‘beyond merely identifying a prior conviction’ by ‘tr[ying] to discern what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct.’ ” (Gallardo, supra, 4 Cal.5th at p. 135, quoting Descamps v. United State (2013) 570 U.S. 254 (Descamps).) Therefore, “a court considering whether to impose an increased sentence based on a prior qualifying conviction . . . [is] limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.” (Gallardo, supra, at p. 136.)

2. The Nevada Burglary Conviction

Defendant was convicted of burglary in Nevada in 2009.

In Nevada, “[t]he offense of burglary requires proof that the defendant entered a building, vehicle, or other enumerated location ‘with the intent to commit grand or petit larceny, assault or battery on any person or any felony.’ ” (Servin v. State (2001) 117 Nev. 775, 789, quoting Nev. Rev. Stat. § 205.060.) It does not require proof of entry of an inhabited dwelling. (Servin, supra, at p. 789, fn. omitted [contrasting burglary with the offense of home invasion].) “The elements of first degree burglary in California are (1) entry into a structure [(2)] currently being used for dwelling purposes . . . ([3]) with the intent to commit a theft or a felony.” (People v. Sample (2011) 200 Cal.App.4th 1253, 1261.) Thus, the elements of burglary under Nevada law differ from the elements of first degree burglary under California law in that only California law requires that the burglarized structure be inhabited.

The Nevada indictment accused defendant of “willfully and unlawfully enter[ing] a certain house located at [an address in Nevada] being the house of [the victim], with the intent then and there to commit larceny therein.” Defendant pleaded guilty to the burglary charge. His guilty plea memorandum stated that “the elements of the offense[] which the State would have to prove beyond a reasonable doubt at trial are that . . . I did . . . willfully and unlawfully enter a certain house located at [an address in Nevada] being the house of [the victim], with the intent then and there to commit larceny therein.”

It is unclear whether the trial court failed to recognize the discrepancy between the two statutes or whether it recognized the statutory disconnect and made a factual finding that the burglarized Nevada house was inhabited. Either way, the court erred. To the extent the court made a factual finding, it erred because it was permitted to consider only those facts “that the defendant admitted as the factual basis for a guilty plea” (Gallardo, supra, 4 Cal.5th at p. 136), which did not include that the house was inhabited. “[W]hen a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense’s elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment.” (Descamps, supra, 570 U.S. at p. 270.)

For the foregoing reasons, we will direct the trial court on remand to vacate its findings that defendant’s Nevada conviction qualifies as a prior strike and a prior serious felony.

D. Section 654

Defendant maintains that the trial court erred by failing to stay the sentence on either his conviction for inflicting corporal injury on someone with whom the offender has a dating relationship (count 4) or his conviction for assault by means of force likely to produce great bodily injury (count 5) because both counts were based on the same acts. The Attorney General concedes the error. For the reasons that follow, we will accept the Attorney General’s concession.

1. Standard of Review and Legal Principles

Section 654, subdivision (a) provides in relevant part, “[a]n 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.” “[I]t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor.” (People v. Perez (1979) 23 Cal.3d 545, 551.) The purpose of the protection against multiple punishments is to ensure that the defendant’s punishment will be commensurate with his criminal culpability. (Id. at p. 551, fn. 4.) “When convictions for two or more offenses are subject to section 654, the court sentences the defendant on the one providing the longest punishment and then imposes and stays the terms on the others.” (In re Borlik (2011) 194 Cal.App.4th 30, 34, fn. 4.)

“We apply the substantial evidence standard of review to the trial court’s implied finding that a defendant harbored a separate intent and objective for each offense.” (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414.)

2. Analysis

Counts 4 and 5 were based on defendant’s assault of Kristina outside the Palo Alto courthouse. The prosecutor made that clear during her closing argument, telling jurors that “Count 5, essentially, covers the exact same acts covered by Count 4.” Therefore, the trial court erred in failing to stay the sentence on count 4 or count 5, which involve the same sentencing triad. (See People v. Jones (2012) 54 Cal.4th 350, 358 [“Section 654 prohibits multiple punishment for a single physical act that violates different provisions of law”].)

E. Unauthorized Sentence

Although not raised by the parties, the trial court failed to correctly apply section 1170.1, subdivision (a), which resulted in the imposition of an unauthorized sentence. Unauthorized sentences “are reviewable ‘regardless of whether an objection or argument was raised in the trial and/or reviewing court.’ ” (People v. Smith (2001) 24 Cal.4th 849, 852.)

“If a defendant is convicted in a single proceeding of more than one felony carrying a determinate sentence, the sentencing court may order that the terms be served either concurrently or consecutively. If the sentencing court imposes consecutive terms, subdivision (a) of section 1170.1 specifies the normal method for calculating the overall prison term. It provides that, with certain exceptions, ‘the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and [s]ection 12022.1.’ (§ 1170.1, subd. (a).) It explains that the ‘principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements’ and that, with certain exceptions, ‘[t]he subordinate term for each consecutive offense . . . shall consist of one-third of the middle term of imprisonment prescribed for each’ felony and ‘shall exclude any specific enhancements.’ (Ibid.)” (People v. Nguyen (1999) 21 Cal.4th 197, 201-202.) “[T]he Three Strikes law’s basic sentencing provision for two strikes defendants (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)) incorporates the principal term/subordinate term methodology of section 1170.1,” such that “subordinate terms [should be calculated] by doubling one-third of the middle term for each such offense.” (Id. at p. 207.)

Here, the trial court correctly selected the 28-year sentence on count 3 as the principal term. The court then imposed consecutive terms on counts 4, 5, and 7. Both the oral pronouncement of judgment and the abstract of judgment indicate that the court imposed full-term consecutive sentences on those counts, rather than one-third the middle term as required by section 1170.1. In fact, the two year terms imposed on counts 4 and 5 are one-third the middle term of three years, doubled by the strike. (§ 273.5, subd. (a) [two, three, four triad]; § 245, subd. (a)(4) [two, three, four triad].) Accordingly, on counts 4 and 5, the court imposed the correct amount of time, but the abstract of judgment and oral pronouncement of judgment characterize the terms incorrectly. On count 7, the court did in fact impose the full middle term of two years, doubled by the strike. (§ 136.1, subd. (b)(2); § 1170, subds. (h)(1) and (h)(3) [16 months, two years, three years triad for felonies without specified terms].) That sentence was unauthorized; section 1170.1 required the court to impose one-third the middle term of two years, doubled (16 months).

We note the foregoing errors without requesting supplemental briefing. We do so in the interest of judicial economy because the sentencing errors are clear and can be remedied by the trial court on remand. (People v. Taylor (2004) 118 Cal.App.4th 454, 456.) Any party that nevertheless is aggrieved may petition for rehearing. (Id. at p. 457; Gov. Code, § 68081.)

III. DISPOSITION

The judgment is reversed, the sentence is vacated, and the matter is remanded to the trial court. On remand, the trial court is directed to vacate its findings that defendant’s Nevada conviction qualifies as a prior strike and a prior serious felony. The prosecution may elect to retry the prior conviction allegations. Regardless of whether the prosecution elects to retry the allegations, the court shall resentence defendant in accordance with sections 654 and 1170.1, subdivision (a).

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ELIA, ACTING P. J.

WE CONCUR:

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MIHARA, J.

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GROVER, J.

People v. Mixon-Givens

H044705