People v. Nelson CA2/7 ( 2021 )

Filed 5/24/21 P. v. Nelson CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B296142
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA084564)
v.
KURT WAYNE NELSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Joseph A. Brandolino, Judge. Affirmed in part,
reversed in part, and judgment modified.
Lori Nakaoka, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Steven D. Matthews and J.
Michael Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
The trial court sentenced Kurt Wayne Nelson to 40 years in
prison following his conviction on numerous charges resulting
from a residential robbery during which Nelson impersonated a
police officer, threatened two residents with a gun, and shocked
them with a Taser. Nelson later attempted to dissuade the victims
from testifying against him. Nelson contends the trial court
should have sentenced him on two robbery charges and stayed his
sentences for false imprisonment and assault with a
semiautomatic firearm because Nelson completed the crimes by a
single physical act or, if Nelson committed the crimes in a course
of conduct, he had a single intent and objective.
Nelson and the People agree that Nelson’s convictions for
assault with a firearm must be reversed because assault with a
firearm is a lesser included offense of assault with a
semiautomatic firearm. They also agree that one of Nelson’s two
first degree residential burglary convictions must be reversed
because Nelson committed only one burglary, and that two one-
year prior prison term enhancements must be stricken because
neither of Nelson’s prior prison terms was for a sexually violent
offense.
Finally, Nelson and the People agree that the trial court
erred by imposing consecutive terms of one-third the middle term
of two years (eight months) on two counts of attempted witness
dissuasion rather than the full middle term on each count required
by Penal Code1 section 1170.15. They disagree about whether we
should modify Nelson’s sentence to impose the full consecutive
1 All further undesignated statutory references are to the
Penal Code.
2
terms on the two witness dissuasion counts or remand the case to
the superior court for resentencing.
We reverse Nelson’s convictions of assault with a firearm
and one conviction of first degree residential burglary, and we
strike the two one-year prior prison term enhancements. Because
the record demonstrates the trial court would not impose
concurrent sentences on the attempted witness dissuasion counts,
remand is not appropriate, and we modify Nelson’s sentence to
impose consecutive full middle terms of two years on each count of
attempted witness dissuasion. We affirm the judgment in all
other respects.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Amended Consolidated Information
The amended consolidated information charged Nelson with
two counts of kidnapping to commit another crime (§ 209,
subd. (b)(1); counts 1 and 2); two counts of first degree residential
robbery (§ 211; counts 3 and 4); two counts of making criminal
threats (§ 422, subd. (a); counts 5 and 6); torture (§ 206; count 7);
two counts of assault with a deadly weapon (a Taser) (§ 245,
subd. (a)(1); counts 9 and 10); two counts of false imprisonment by
violence (§ 236; counts 11 and 12); two counts of first degree
residential burglary (§ 459; counts 13 and 16); two counts of
assault with a firearm (§ 245, subd. (a)(2); counts 14 and 15); and
two counts of attempted witness dissuasion (§ 136.1, subd. (a)(2);
counts 19 and 20).2
2 The court dismissed a second torture charge (count 8) at the
preliminary hearing and two charges of kidnapping for ransom
(counts 17 and 18) pursuant to section 995.
3
The information alleged as to counts 1 through 7 and 9
through 16 that Nelson committed the crimes while impersonating
a police officer (§ 538d). The information alleged as to counts 1
through 4 and 7 that Nelson personally used a firearm within the
meaning of section 12022.53, subdivision (b), and as to counts 5, 6,
and 9 through 15 that Nelson personally used a firearm within the
meaning of section 12022.5, subdivision (a).3 The information
alleged as to counts 1 through 7, 9 through 16, and 19 and 20 that
Nelson had suffered three prior prison terms (§ 667.5, subd. (b)).
The People amended the information at trial to conform to
proof to add two counts of assault with a semiautomatic firearm
(§ 245, subd. (b); counts 21 and 22) with police officer
impersonation and firearm use allegations. Nelson pleaded not
guilty and denied the special allegations.
B. The Evidence at Trial
1. The June 8, 2016 crimes
On June 8, 2016 at approximately 1:00 p.m. Jose Chavez
was in the backyard of his home in North Hollywood, California.
Jose’s adult daughter Catherine was eating lunch in the kitchen.4
Catherine saw Nelson run to their front door, and she heard
3 The information alleged as to one of the counts of first
degree residential burglary (count 13) that Nelson personally used
a firearm in the commission of the offense, but not as to the other
first degree residential burglary count (count 16). The verdict
form directed the jury to consider a firearm enhancement on
count 16. Nelson does not raise this issue on appeal.
4 For clarity, we refer to Jose Chavez and Catherine Chavez
by their first names.
4
banging on the door. Nelson yelled, “Police. Open up.” Catherine
was scared.
Catherine ran to the backyard and told Jose a police officer
was at the door. Jose and Catherine returned to the house and
looked through the open kitchen window at Nelson.
Nelson again identified himself as a police officer, and
gestured towards his waistband, displaying a gold badge and a
gun. He waved a piece of paper at Jose and Catherine, yelling, “I
have a warrant.” Catherine told Jose to open the door, and Jose
let Nelson in.
Nelson entered the house “very aggressive[ly],” and told Jose
and Catherine to “move back.” Nelson drew and racked a gun, and
pointed it at Jose and Catherine, causing them to retreat two or
three steps. The gun was square, similar to a police gun, and
appeared to be semiautomatic. A second man entered the house
after Nelson and went into the bedroom area.5
Nelson told Jose and Catherine to move into the kitchen,
and to keep their hands where he could see them. Nelson
continued to point the gun at them. Nelson told Jose and
Catherine to sit down on the kitchen floor, and then to lie face
down on the floor. Jose and Catherine were scared and believed
Nelson intended to kill them.
Nelson repeatedly and angrily yelled, “Where’s Gordo?” Jose
and Catherine told Nelson they did not know anyone named
“Gordo.” Jose told Nelson he had come to the wrong house.
Nelson pointed the gun at Jose’s head and yelled at Jose not to
look at him. Jose felt the gun to his head as Nelson told Catherine
he was going to kill Jose.
5 Police suspected the second man was Frederick Dorton,
known as “Duke.” Dorton died before trial.
5
Nelson then asked Jose and Catherine, “Where’s the dope?”
Jose again told Nelson he had come to the wrong house. Nelson
stepped on Catherine’s leg and asked her “where the dope was.”
Nelson was “very aggressive” and “was cussing” at Catherine.
Nelson shocked Catherine with a Taser, causing Catherine
to scream loudly and cry. Jose thought Nelson had shot
Catherine. Catherine told the police that just before Nelson fired
the Taser, Nelson told Jose, “I’m going to tase your daughter so
you can see her hurt.”
Nelson kicked Catherine and pressed what Catherine
thought was the gun to the back of her knee. Nelson told
Catherine he knew where to shoot her so she would not walk
“normal[ly]” again.
Nelson shocked Catherine with the Taser again. Catherine
screamed and told Nelson to stop. Catherine testified the pain
from the Taser “was like getting electrocuted,” “a 10” on a pain
scale of zero to 10, and “like a shooting pain throughout [her]
whole body at the same time.”
Nelson continued loudly asking, “Where’s the fucking dope?”
Nelson said, “Don’t you watch TV and see how cops treat people or
shoot people? Where is the dope?” Nelson told Jose and Catherine
“he was going to ‘fucking kill’ [them] and no one would ‘fucking
know that he did it, that it was him.’”
Nelson shocked Jose with the Taser. Jose “felt
something . . . very hot,” and his “entire body became numb”; the
sensation was “like, a very strong pain from heat.” Jose thought
Nelson had shot him. Jose “was screaming really loud[ly]” from
the pain. Jose testified, “The more I yelled . . . the harder [Nelson]
did it; the more he did it, the louder I would yell. . . . [Nelson] just
kept doing it. It was stronger and stronger.” Catherine “kept
telling [Nelson] to ‘stop,’ and he wouldn’t stop.” Catherine thought
6
Jose was dying. Jose ultimately “played dead” so that Nelson
would stop shocking him with the Taser.
Nelson’s accomplice emerged from the bedroom area. Nelson
asked him, “Did you find him?” The accomplice did not reply.
Nelson told Jose and Catherine, “You guys are fucking stupid.
We’re going to fucking kill you, you watch.” Nelson also told Jose
and Catherine that he and his accomplice would return with
“backup.” The men left.
Catherine told Jose to “just wait.” Catherine waited about a
minute and then got up to make sure the men had gone. Jose
remained on the floor until Catherine told him the men had left.
Jose had two Taser darts buried in the skin on his back.
Jose asked Catherine to cut off the Taser wires. Catherine and
Jose walked into the backyard, where Jose smoked a cigarette.
Jose was upset and angry. Catherine was scared. Catherine
called her brother, who told her to call 911.
A police officer who responded to Catherine’s 911 call
described her as “crying,” “angry,” “very . . . scared,” and
“hysterical.” Paramedics arrived and administered medical care to
Jose, but were unable to remove the Taser darts from Jose’s back.
A doctor ultimately removed the darts from Jose’s back at the
hospital; Jose had two small marks on his back, but did not receive
any stitches. A defense medical expert testified Jose’s injuries
were minor.
Catherine’s work backpack and other personal property were
missing from her bedroom. Catherine’s missing property included
a credit card, several pairs of designer sunglasses, diamond
jewelry, seven designer watches, and a designer handbag.
7
Police compared Nelson’s DNA profile with the DNA profile
from a zip tie collected from the Chavez home. The profiles were
consistent.
2. The February 7, 2017 crimes
On February 7, 2017, a week before Nelson’s preliminary
hearing, a “short, fat man” arrived at the Chavezes’ front gate.
The man yelled at Jose in Spanish to “come here.” The man told
Jose and Catherine he was Nelson’s friend. The man said Nelson
had given him the Chavezes’ address, and told the man to convince
Jose and Catherine not to press charges against Nelson and not to
testify at the preliminary hearing. The man said Nelson would
reveal the identity of the person behind the attack on Jose and
Catherine if they did not appear in court.6 Catherine recorded the
man on her cellular telephone. Jose and Catherine were scared.
Jose and Catherine later identified the man in a photographic
display.7
C. The Jury Verdicts and the Sentencing
The jury acquitted Nelson on two charges of kidnapping to
commit another crime (counts 1 and 2), torture of Jose (count 7),
and two assault with a deadly weapon charges (counts 9 and 10).
The jury found Nelson guilty on the remaining charges, and found
the police impersonation and firearm allegations true.
6 While in custody, Nelson made several telephone calls
discussing plans to have someone approach Jose and Catherine
and ask them not to testify.
7 The Chavezes had installed surveillance cameras following a
prior burglary. The cameras recorded the June 8, 2016 and
February 7, 2017 crimes, and the jury viewed videos and still
photographs from the surveillance camera footage.
8
The trial court bifurcated the prior prison term allegations
from the trial on the other charges. Nelson waived his right to a
jury trial on the prior prison term allegations, and the trial court
found true two of three prior prison term allegations.8
The trial court sentenced Nelson to an aggregate state
prison term of 40 years. The court selected count 22 (assault of
Catherine with a semiautomatic firearm) as the principal term
and sentenced Nelson to the upper term of nine years, plus the
upper term of 10 years for the firearm enhancement pursuant to
section 12022.5, subdivision (a), and an additional year for
impersonating a police officer pursuant to section 667.17, for a
total term of 20 years.9 On counts 3 and 4 (first degree residential
robbery), the court sentenced Nelson to consecutive terms of one-
third the middle term of four years (16 months), plus one-third of
10 years (three years four months) for the firearm enhancement
pursuant to section 12022.53, subdivision (b), for a total term of
four years eight months on each count. On counts 11 and 12 (false
imprisonment by violence), the court sentenced Nelson to
consecutive terms of one-third the middle term of two years (eight
months), plus one-third the middle term of four years (16 months)
for the firearm enhancement pursuant to section 12022.5,
subdivision (a), for a total term of two years on each count. On
counts 19 and 20 (attempted witness dissuasion), the court
sentenced Nelson to consecutive terms of one-third the middle
8 The trial court granted the People’s motion to strike one of
the prior prison term allegations because the former prior prison
term did not qualify for enhancement pursuant to section 667.5,
subdivision (b).
9 The trial court imposed the police officer impersonation
enhancement on count 22 only.
9
term of two years for a total term of eight months on each count.
On count 21 (assault of Jose with a semiautomatic firearm), the
court imposed a consecutive term of one-third the middle term of
six years (two years), plus one-third the middle term of four years
(16 months) for the firearm enhancement pursuant to
section 12022.5, subdivision (a), for a total term of three years four
months. The court also imposed an additional two years for the
two prior prison terms pursuant to section 667.5, subdivision (b).10
The trial court made detailed comments regarding its
sentencing decisions:
“[L]et me start with counts 21 and 22. They are
violent assaults. So . . . they can be consecutive
because they’re separate victims. . . .
“As to counts three and four, again, there are
separate victims, so . . . those two can be consecutive
to each other. And the question is whether they have
to be stayed, in light of [the] other counts.
“My view is that, certainly, with respect to counts 21
and 22, there’s a different and independent criminal
objective than assault with a firearm[] [and] when
you’re talking about first degree residential
robbery[] . . . there were numerous assaults. The
assaults occurred throughout the course of the
10 On counts 5 and 6 (making criminal threats), 13 and 16 (first
degree residential burglary), and 14 and 15 (assault with a
firearm), the trial court imposed and stayed pursuant to
section 654 upper term sentences plus upper term sentences for
the firearm enhancements.
10
defendant committing the numerous crimes on which
he was convicted, including when the victims were on
the ground, which the court considers part of a
separate . . . sadistic episode, apart from the robbery.
“I think the defendant’s objective in committing first
degree robbery involves taking property from the
victims while in the residence, so very different from
assault with a firearm. And my view is they can be
run consecutively. And it’s a violent crime, so we can
have consecutive counts for each victim.
“And then, counts 11 and 12, false imprisonment that
occurred while the victims were on the ground in the
kitchen, again . . . as to that incident, the defendant,
ha[d] . . . a sadistic objective, independent . . . of
robbery. The facts—what he did in those
circumstances while the victims were on the ground,
including tasering and threatening the victims, was
violent. So I think those, also, can be run consecutive
to each other because there were two victims. . . .
“Counts 5 and 6 are criminal threats. . . . [C]riminal
threats were occurring throughout the course of the
numerous crimes. . . . [I]n my view of the false
imprisonment and the gun assault, the false
imprisonment occurring and the gun assault while
the victims are on the ground, I do think that the
criminal threats were part of the same objective.
11
“I’m inclined to stay [the sentences on counts 5
and 6].
“[C]ounts 19 and 20, the dissuading witness counts,
are consecutive because they occurred on different
occasions to the other counts, and I think there was a
different objective for each witness. So I think they
would be consecutive to each other, as well. . . .
“[T]o those counts to which . . . I am choosing to run
consecutively, I’m also running one-third the mid
term of the firearm enhancement on each of those
counts because . . . there were different criminal
objectives . . . for each of these. . . .
“[U]nder the circumstances of this case, the way that
the gun was used in the course of each of the different
crimes—and I’ve explained why I think those crimes
that I may run consecutively have different
objectives—I think the use of the gun within those
different objectives allows me to run those
consecutively, as well.
“I recognize I have the discretion to strike the firearm
enhancements, and I’m declining to exercise that
discretion.”
The trial court also identified aggravating factors it stated
supported its decision to impose consecutive sentences, including
Nelson’s “significant criminal history,” the “violent, brazen, and
callous” crimes that “truly demonstrate utter lack of empathy or
consideration of others,” and the likelihood that Jose and
12
Catherine would be affected by the crimes “for the rest of their
lives.” The court further observed that Nelson had “shown no
remorse, absolutely no remorse,” and that the court was
“convinced [Nelson], . . . someone capable of committing this type
of a crime, [would] do it again, given the chance.”
The trial court concluded its sentencing remarks as follows:
“I want to make it clear for the appellate court—my
intention is to sentence the defendant to the
maximum amount of time. If the appellate court
finds that I’m mistaken in the counts that I’m staying
pursuant to Penal Code section 654 or any
allegations, my intent is to impose consecutive time
on those counts and any allegations. So I want to
make that clear for the record.”
Nelson filed a timely appeal.
DISCUSSION
A. Nelson’s Sentence Does Not Violate Section 654
1. Governing law and standard of review
Section 654, subdivision (a), provides, “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.”
The determination whether a defendant may be subjected to
multiple punishment under section 654 requires a two-step
inquiry. First, the court considers whether the different crimes
were completed by a single physical act. If so, the defendant may
be punished only once for the single act. (People v. Corpening
(2016) 2 Cal.5th 307, 311 (Corpening).) If more than a single act is
13
involved, that is, a “course of conduct,” then the court considers
whether “that course of conduct reflects a single “‘intent and
objective’” or multiple intents and objectives.” (Id. at p. 311.) If
multiple acts were pursued with a single criminal intent and
objective, “‘“‘the defendant may be punished for any one of such
offenses but not for more than one.”’”’ (People v. Jackson (2016)
1 Cal.5th 269, 354 (Jackson); accord, Corpening, at p. 311.)
“Whether multiple convictions are based upon a single act is
determined by examining the facts of the case.” (People v. Mesa
(2012) 54 Cal.4th 191, 196; accord, Corpening, supra, 2 Cal.5th at
p. 312.) Similarly, “[i]ntent and objective are factual questions for
the trial court, which must find evidence to support the existence
of a separate intent and objective for each sentenced offense.”
(Jackson, supra, 1 Cal.5th at p. 354; accord, People v. Vasquez
(2020) 44 Cal.App.5th 732, 737.)
“‘Whether section 654 applies in a given case is a question of
fact for the trial court, which is vested with broad latitude in
making its determination. [Citations.] Its findings will not be
reversed on appeal if there is any substantial evidence to support
them. [Citations.] We review the trial court’s determination in
the light most favorable to the respondent and presume the
existence of every fact the trial court could reasonably deduce from
the evidence.’” (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378;
accord, People v. Osband (1996) 13 Cal.4th 622, 731.)
2. Substantial evidence supports the trial court’s
determination that section 654 does not bar separate
punishment for robbery, false imprisonment, and
assault with a semiautomatic firearm
Nelson contends the robbery, false imprisonment, and
firearm assaults consisted of a single physical act—the use of force
14
and fear to commit a robbery. He alternatively argues that if he
committed the crimes in a course of conduct, he had a single intent
and objective—to rob Jose and Catherine.
The trial court disagreed, finding that Nelson committed
“numerous assaults,” which the court described as “part of a
separate . . . sadistic episode, apart from the robbery.” The court
found that Nelson’s objective in committing the robbery—taking
property from Jose and Catherine while in their home—was “very
different” from assaulting them with a semiautomatic firearm.
The trial court likewise found that Nelson’s objective in falsely
imprisoning Jose and Catherine through violence—confining Jose
and Catherine in the kitchen by repeatedly shocking them with a
Taser and threatening to kill them—was “sadistic” and
independent of the objective of taking their property. In sum, the
trial court concluded that Nelson’s violent assaults of Jose and
Catherine with the gun and the Taser were separate from, and
unnecessary to accomplish, the robbery. Substantial evidence
supports the trial court’s findings.11 (See People v. Nguyen (1988)
204 Cal.App.3d 181, 191 [section 654 “cannot, and should not, be
stretched to cover gratuitous violence or other criminal acts far
11 The only case Nelson cites in support of his contention that
the robbery, false imprisonment, and firearm assaults consisted of
a single physical act, Corpening, supra, 2 Cal.5th 307,
demonstrates the opposite. The defendant in Corpening was
convicted of carjacking and robbery “based on the same forceful
taking of a vehicle.” (Id. at p. 309.) The Supreme Court held that
section 654 barred consecutive sentences because “the same
taking [], according to the prosecution, accomplished the crimes of
both robbery and carjacking.” (Ibid.) A single vehicle taking in no
way resembles Nelson’s series of separate criminal acts against
Jose and Catherine.
15
beyond those reasonably necessary to accomplish the original
offense”]; see also People v. Cleveland (2001) 87 Cal.App.4th 263,
271-272 [trial court did not err in finding defendant “harbored
divisible intents in committing two separate crimes—robbery and
attempted murder” where amount of force used to steal radio was
“far more than necessary”].)
Nelson also argues the trial court violated section 654 when
it used “the same aspect—the criminal act of using a gun” to
impose firearm enhancements on each robbery, false
imprisonment, and semiautomatic firearm assault count. In
People v. Ahmed (2011) 53 Cal.4th 156 the Supreme Court held
sentence enhancements may be subject to section 654 provided the
specific sentencing statutes do not address whether more than one
enhancement may be imposed. (Id. at p. 159.) The Court held
that, when applied to multiple enhancements for a single crime,
separate enhancements may be applied to different aspects of the
same substantive offense (id. at p. 163), but “section 654 bars
multiple punishment for the same aspect of a criminal act.” (Id. at
p. 164.)
Nelson does not challenge the trial court’s imposition of both
a firearm enhancement and a police impersonation enhancement
on count 22 (assault of Catherine with a semiautomatic firearm).
And, contrary to Nelson’s claim, the trial court did not impose
multiple punishment for the same aspect of a single criminal act.
The trial court separately punished Nelson for six separate crimes
and six distinct uses of a gun: brandishing and racking the gun to
subdue Jose and Catherine upon entering their home; using the
gun to compel Jose and Catherine to move to the kitchen and lie
face down on the floor; and putting the gun to Jose’s head and
threatening to shoot Catherine and permanently disable her. The
court did not violate section 654 when it imposed firearm
16
enhancements for Nelson’s six separate uses of a gun in the
commission of robbery, false imprisonment, and assault with a
semiautomatic firearm of two victims.12 (Cf. People v. Calles
(2012) 209 Cal.App.4th 1200, 1217-1218 [section 654 prohibited
court’s use of same act to sentence defendant for the offense of
fleeing the scene of an accident and to enhance his vehicular
manslaughter conviction based on the same conduct of fleeing the
scene of a crime].)
B. Nelson’s Assault with a Firearm Convictions Must Be
Reversed
The amended information charged Nelson with two counts of
assault with a firearm (counts 14 and 15). The People amended
the information at trial to conform to proof and added two counts
of assault with a semiautomatic firearm (counts 21 and 22). The
jury convicted Nelson on all four counts. Nelson argues, and the
People agree, that the convictions of assault with a firearm must
be reversed because assault with a firearm is a lesser included
offense of assault with a semiautomatic firearm.
“The law prohibits simultaneous convictions for both a
greater offense and a lesser offense necessarily included within it,
when based on the same conduct. [Citation.] ‘When the jury
expressly finds defendant guilty of both the greater and lesser
offense . . . the conviction of [the greater] offense is controlling, and
the conviction of the lesser offense must be reversed.’” (People v.
12 Nelson acknowledges the trial court did not violate
section 654 by sentencing him separately for crimes committed
against two victims. (See People v. Correa (2012) 54 Cal.4th 331,
341 [section 654 does not preclude imposition of separate
sentences for crimes of violence committed against different
victims]; People v. Oates (2004) 32 Cal.4th 1048, 1063 [same].)
17
Milward (2011) 52 Cal.4th 580, 589.) “[I]f the statutory elements
of the greater offense include all of the statutory elements of the
lesser offense, the latter is necessarily included in the former.”
(People v. Reed (2006) 38 Cal.4th 1224, 1227.) “‘[A] statutorily
lesser included offense is subject to the bar against multiple
convictions in the same proceeding . . . .’” (Id. at p. 1229.)
Here, the greater offense, assault with a semiautomatic
firearm (§ 245, subd. (b)), includes all of the elements of the lesser
offense, assault with a firearm (§ 245, subd. (a)(2)). Nelson
therefore may not be convicted of both offenses. We accordingly
reverse the assault with a firearm convictions (counts 14 and 15).
C. One of Nelson’s Burglary Convictions Must Be Reversed
The People charged Nelson with two counts of first degree
residential burglary (counts 13 and 16), one count against Jose
and one count against Catherine. The jury convicted Nelson on
both counts. Nelson argues, and the People agree, that one of the
burglary convictions must be reversed because Nelson committed
only one burglary.
Section 459 defines the crime of burglary as entry into “any
house, room, apartment, tenement, shop, warehouse, store, mill,
barn, stable, outhouse or other building . . . with intent to commit
grand or petit larceny or any felony . . . .” The elements of first
degree burglary are (1) entry into a structure currently being used
for dwelling purposes and (2) with the intent to commit a theft or a
felony. (§§ 459, 460; People v. Sample (2011) 200 Cal.App.4th
1253, 1261.)
18
The People concede “[i]t is undisputed that [Nelson] entered
a single dwelling, the Chavez residence.” We therefore reverse
Nelson’s conviction of first degree residential burglary as to Jose
(count 16).
D. The Two One-year Prior Prison Term Enhancements Must Be
Stricken
Nelson argues, and the People agree, that both one-year
prior prison term enhancements must be stricken. Effective
January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.)
amended section 667.5, subdivision (b), to provide a one-year prior
prison term sentence enhancement only for sexually violent
offenses, as defined in Welfare and Institutions Code section 6600,
subdivision (b). (People v. Gastelum (2020) 45 Cal.App.5th 757,
772; People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Senate
Bill No. 136 applies retroactively to Nelson because his sentence
was not final at the time the new law became effective on January
1, 2020. (People v. Winn (2020) 44 Cal.App.5th 859, 872 [“Because
[defendant’s] conviction is not yet final, he is entitled to the
retroactive benefit of the change in law.”]; Jennings, at p. 682
[“Senate Bill No. 136’s . . . amendment to section 667.5,
subdivision (b) applies retroactively to all cases not yet final as of
its January 1, 2020, effective date.”]; see In re Estrada (1965)
63 Cal.2d 740, 744-745.)
The People concede that neither of Nelson’s prior prison
terms was for a sexually violent offense. We thus strike the two
one-year section 667.5, subdivision (b), enhancements from
Nelson’s sentence. (People v. Smith (2020) 46 Cal.App.5th 375,
396; People v. Gastelum, supra, 45 Cal.App.5th at p. 772.)
19
E. The Sentences for Attempted Witness Dissuasion Must Be
Modified
The jury convicted Nelson on two counts of attempted
witness dissuasion pursuant to section 136.1, subdivision (a)(2)
(counts 19 and 20). The trial court imposed consecutive terms of
one-third the middle term of two years (eight months) on each
count. The People assert, and Nelson agrees, that Nelson’s
sentences for attempted witness dissuasion must be corrected
because section 1170.15 requires the trial court to impose the full
middle term on each count if it imposes consecutive sentences.
Section 1170.15 states:
“Notwithstanding subdivision (a) of Section 1170.1
which provides for the imposition of a subordinate
term for a consecutive offense of one-third of the
middle term of imprisonment, 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 . . . the first
felony . . . the subordinate term for each consecutive
offense that is a felony described in this section shall
consist of the full middle term of imprisonment for
the felony for which a consecutive term of
imprisonment is imposed . . . .”
Section 1170.15 “requires the trial court to impose the full middle
term of imprisonment only if a consecutive sentence is imposed.
The section does not require the trial court to impose a consecutive
sentence, but instead indicates that if the trial court chooses
consecutive sentencing it must impose a full-term sentence for the
witness dissuasion count.” (People v. Woodworth (2016)
245 Cal.App.4th 1473, 1479.)
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The People request we modify Nelson’s sentence to impose
the full consecutive terms for the attempted witness dissuasion
counts. Nelson argues remand is appropriate for the trial court to
determine in the first instance whether to impose consecutive or
concurrent terms.
“Generally, when the record shows that the trial court
proceeded with sentencing on the erroneous assumption it lacked
discretion, remand is necessary so that the trial court may have
the opportunity to exercise its sentencing discretion at a new
sentencing hearing.” (People v. Brown (2007) 147 Cal.App.4th
1213, 1228; see People v. Johnson (2019) 32 Cal.App.5th 26, 29
[remand appropriate when reviewing court would otherwise have
to speculate about what trial court may have done had it been
fully aware of its sentencing discretion].)
The record here does not reflect that the trial court acted on
the erroneous assumption it lacked discretion to impose the
attempted witness dissuasion sentences concurrently. The trial
court explained it was imposing consecutive sentences for
attempted witness dissuasion because those crimes “occurred on
different occasions to the other counts, and . . . there was a
different objective for each witness.” (See Cal. Rules of Court,
rule 4.425(a)(3) [that “crimes were committed at different times or
separate places” supports imposing consecutive rather than
concurrent sentences].) Moreover, the trial court unequivocally
stated its intention to sentence Nelson to the maximum prison
term available. The court described Nelson’s treatment of Jose
and Catherine as “sadistic,” and emphasized Nelson’s “significant
criminal history,” “utter lack of empathy,” and that Nelson had
“shown no remorse, absolutely no remorse.” As further evidence of
its intention to impose the longest sentence possible, the trial
court expressly acknowledged its discretion to strike the firearm
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enhancements, and declined to do so. Reviewing this record, we
conclude there is no possibility the trial court would on remand
impose concurrent sentences on the attempted witness dissuasion
counts. (See People v. Jones (2019) 32 Cal.App.5th 267, 274, 275
[“Besides not exercising its discretion for leniency when it could
have, the trial court made clear its intention to impose the most
stringent sentence it could justifiably impose”; “[u]nder these
circumstances, we are confident the court would not strike the
felony prior and its resulting enhancement out of lenience toward
defendant”].) We accordingly modify Nelson’s sentence to impose
consecutive full middle term sentences of two years on each count
of attempted witness dissuasion (counts 19 and 20).13
DISPOSITION
Nelson’s convictions of assault with a firearm (counts 14
and 15) and one conviction of first degree residential burglary
(count 16) are reversed. The two one-year prior prison term
enhancements imposed pursuant to section 667.5, subdivision (b),
are stricken. The sentences on each count of attempted witness
dissuasion (counts 19 and 20) are modified to impose consecutive
sentences of the full middle term of two years on each count,
resulting in an aggregate state prison term of 40 years eight
months. The judgment is affirmed in all other respects. The
13 Nelson argues we should remand for resentencing because
the trial court improperly used the same facts to support
consecutive sentences and the upper terms on count 22 (assault of
Catherine with a semiautomatic firearm) and the stayed counts.
Nelson acknowledges he did not make this objection at sentencing.
Nelson thus forfeited this argument on appeal. (People v. Scott
(1994) 9 Cal.4th 331, 353; People v. De Soto (1997) 54 Cal.App.4th
1, 7-8; People v. Erdelen (1996) 46 Cal.App.4th 86, 91.)
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superior court is directed to prepare an amended abstract of
judgment and forward it to the Department of Corrections and
Rehabilitation.
McCORMICK, J.*
We concur:
PERLUSS, P. J.
SEGAL, J.
* Judge of the Orange County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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