People v. Barefield ( 2021 )


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  • Filed 9/10/21
    CERTIFIED FOR PARTIAL PUBLICATION*
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    THIRD APPELLATE DISTRICT
    (Sacramento)
    ----
    THE PEOPLE,                                                       C089464
    Plaintiff and Respondent,                (Super. Ct. No. 17FE017280)
    v.
    MICHAEL SCOTT BAREFIELD,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Sacramento County,
    Matthew J. Gary, Judge. Affirmed.
    John L. Staley, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
    General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Timothy L.
    O’Hair, Deputy Attorney General, for Plaintiff and Respondent.
    * Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
    for publication with the exception of parts II, III, IV, V, and VI of the Discussion.
    1
    Defendant Michael Scott Barefield appeals from his convictions of corporal
    injury, assault with a deadly weapon, and false imprisonment arising from his attack
    against a former girlfriend. He claims the trial court erred by: (1) admitting evidence in
    violation of the marital testimony privilege; (2) admitting propensity evidence; (3)
    admitting fresh complaint evidence; (4) not staying his sentence on the false
    imprisonment count; and (5) using the firearm possession to impose the upper-term
    sentence on the assault count and a firearm enhancement.
    Although the court admitted evidence in violation of the marital privilege, the
    error was harmless. We affirm the judgment.
    FACTS AND HISTORY OF THE PROCEEDINGS
    June 9-10, 2017 attack
    Hazel Doe and defendant started dating in 2013. They lived together, but she
    moved out multiple times, moving out for the last time in January 2016. They had a
    child. By June 2017, Hazel was dating another person, but she and defendant had
    discussed reconciling.
    On June 6, 2017, Hazel and defendant had consensual sex at defendant’s
    residence. The following day, Hazel told defendant she had feelings for someone else.
    On June 9, 2017, defendant invited Hazel to go out for a drink. They met at a bar,
    had drinks, and watched a basketball game. After the game, defendant asked her to go to
    dinner with him. She declined the invitation; she wanted to be home with her daughter
    who had not been feeling well.
    Hazel arrived home around 9:00 or 10:00 p.m. As she opened the front door to her
    residence, defendant rushed up behind her. He told her he wanted to have dinner with
    her, but she reminded him that she needed to be home. Defendant followed her inside
    and continued to ask her to go to dinner. Defendant’s demeanor had changed and it
    frightened Hazel, but she “begrudgingly agreed” to go to dinner to avoid a physical
    2
    confrontation in her home. She and defendant had engaged in physical confrontations in
    the past.
    Defendant drove them to a drive-through Mexican restaurant near his apartment.
    While in the drive-through lane, defendant got out of the car and walked to a nearby
    liquor store to buy alcohol. Hazel got into the driver’s seat and continued through the
    drive-through.
    Hazel drove them to defendant’s apartment. They arrived at around 11:00 or
    11:15 p.m. They went into his kitchen, unwrapped their food, and began eating. Hazel
    had not wanted to go that far from her house, so she took a few bites and then asked
    defendant to take her home. Defendant eventually agreed.
    As Hazel gathered her belongings, defendant walked up to her and tried to kiss
    her. She pulled away and said she really needed to go. He continued trying to kiss her
    and she continued moving away and saying she needed to go. During this banter, the two
    shifted positions. Defendant was closer to the front door and had his back to it; Hazel
    was closer to the hallway with her back toward the hallway and bedrooms.
    Defendant used his body to back Hazel into the bedroom. She tried to maneuver
    around him and said she did not want to “do this now.” He backed her up to the bed, and
    she fell backwards onto it. He fell on top of her and grabbed her clothes. She continued
    telling him to stop and that she needed to leave, but he became more aggressive. He
    placed his forearm on her collar bone to hold her down and tried to take her clothes off
    with the other hand. She told him he was hurting her, and she tried to shove him off.
    The more she fought, the more his forearm grip tightened. She stopped resisting, as it
    was making things worse. Defendant had sex with her. He talked during the act and was
    “coercing [her] to kind of get into it[.]” She “just laid there” and “wasn’t responding at
    all.” After he finished, he started to get dressed, and he told Hazel to get dressed.
    At this point, defendant’s demeanor “totally changed[.]” As Hazel dressed, he
    started yelling at her. He called her a whore and accused her of prostituting herself with
    3
    the man she was dating. Rambling, he said she embarrassed him, everyone knew what
    she was doing. Hazel was confused because she did not know what he was talking about.
    The more he yelled, the more excited he became, and the more afraid Hazel became.
    As she bent over to put on her shoes, defendant swung at her and hit her on her
    right cheek. She spun around, and defendant, still yelling at her, hit her again. She tried
    to strike back with a toy, but he blocked it. He hit her with “an onslaught of punches,”
    punching her “repeatedly.” She tried to defend herself and hit back, but he grabbed her
    and shoved her onto the bed. As she sat up, she saw defendant reach into the top of a
    closet. Hazel heard a click, and when defendant turned around, he pointed a handgun at
    her head.
    Defendant hit her with the gun across the right side of her face. She put up her
    arms to protect herself, but he repeatedly hit her with the gun “over, and over, and over
    again.” She fell to the floor, and defendant kicked her “multiple times” in her back,
    stomach, and ribs. About four or five times, defendant left the room and returned with a
    beer, hitting her each time. He stopped yelling, and at one point he said to her, “I see you
    looking at the gun. I’m not going to shoot yo stupid ass.” He dropped the clip out of the
    gun, hit her with the gun again, put the gun in his pocket, and continued to hit her with
    his hand.
    When defendant eventually went to the bathroom, Hazel grabbed her keys and
    phone, and she ran out of the apartment. She forgot to take her purse. She hid in some
    bushes on the opposite side of defendant’s apartment building. She heard defendant
    come out the door, walk around a bit, walk back to his apartment, and close the door.
    Defendant had kept her at his apartment against her will from the moment she wanted to
    leave for an hour and 15 minutes. She called 911.
    While waiting for police to arrive, around 1:30 a.m. Hazel began exchanging text
    messages with a friend, L.T., and asked her to call the police. L.T. called Hazel, but
    Hazel responded, “I can’t answer.” In one of her messages to L.T., Hazel stated that
    4
    defendant pulled a gun on her and pistol whipped her. L.T. called 911 several times.
    Shortly after 2:30 a.m., L.T. and her boyfriend picked Hazel up outside defendant’s
    apartment. She had one shoe on. She got into the back seat and slumped over. She was
    upset, holding her head, and crying. They drove her home.
    Hazel drove herself to the hospital. When she arrived, she called her ex-husband,
    Maurice Wheatley, to meet her there. She told him that defendant had attacked her and
    struck her with a gun.
    Hazel told the hospital doctor that she had been physically attacked by a gun and
    the assailant’s hands and feet. She did not tell the doctor that she had been sexually
    assaulted because she was still shaken up and there were others in the room. She hoped
    to have a private conversation later with the doctor, but that did not occur. Later that day,
    she told L.T. about the sexual assault.
    Hazel suffered swelling, scrapes, and bruising on her arm, face, back, shoulder,
    finger, head, and around her eye. Photos of her injuries were shown to the jury. At trial,
    she had a scar on her right arm and another across the right side of her face from the
    pistol whipping.
    Around 9:00 a.m. June 10, M.W. called Hazel. M.W. was defendant’s legal wife,
    and Hazel was friendly with her. M.W. told Hazel that defendant had asked her to return
    Hazel’s purse but also to ask Hazel for his gun back. Hazel told M.W. she did not have
    defendant’s gun; defendant had pistol whipped her, kicked her, punched her, and forced
    her to have sex with him. M.W. said she believed Hazel because outside of the gun, she
    had had the same experience.
    Hazel testified of other incidents when defendant physically abused her.
    Sometime in 2015, defendant and she got into an argument, and he shoved her and
    pushed her face into a couch. Defendant had been drinking.
    On one occasion, she and defendant were at a bar and had been drinking heavily.
    He became angry over her not noticing certain people that came into the bar. When they
    5
    got home, defendant hit Hazel twice in the face with his fist. He went into the garage,
    and she locked the door behind him. He broke the door off its hinges.
    On another occasion, defendant grabbed Hazel by her shirt and pushed her against
    the wall. He put his hands around her throat and said, “[Y]ou think I’m playing with
    you? I’ll F you up.”
    Another incident occurred in July 2016 after defendant and Hazel had stopped
    dating. After attending a funeral, they went back to his family’s house. Defendant left
    the house for three to four hours, leaving Hazel and their baby there with no
    transportation. When defendant returned, he was heavily intoxicated. Hazel and
    defendant got into a shouting match that turned into “an all out fist fight” while she was
    holding the baby in her arms.
    Other evidence
    The trial court admitted evidence of uncharged acts of violence defendant had
    committed against M.W. and L.W. We discuss this evidence below.
    The prosecution also presented expert testimony regarding domestic violence.
    Defendant testified on his own behalf.
    Verdict and sentence
    The jury convicted defendant of inflicting corporal injury on the parent of
    defendant’s child, assault with a semiautomatic firearm, and false imprisonment by
    violence, menace, fraud, and deceit. (Pen. Code, §§ 273.5, subd. (a); 245, subd. (b); 236;
    237, subd. (a).) (Statutory section citations that follow are to the Penal Code.) The jury
    also found true personal firearm use enhancement allegations on the assault and false
    imprisonment counts. (§ 12022.5, subds. (a), (b).) The jury hung on a count of rape by
    force, and the court declared a mistrial on that count. (§ 261, subd. (a)(2).)
    The trial court sentenced defendant to an aggregate prison term of 19 years, 8
    months, calculated as follows: the upper term of nine years for the assault plus 10 years
    6
    for the firearm enhancement, and a consecutive eight months (one-third the mid-term) for
    false imprisonment. The court imposed and stayed sentencing on the corporal injury
    count under section 654.
    DISCUSSION
    I
    Evidence Subject to the Marital Privilege
    Defendant contends the trial court erred when it denied M.W.’s assertion of the
    marital testimony privilege and admitted her testimony of uncharged acts of abuse
    defendant had committed against her. It also erred in admitting Hazel’s complaint of the
    offense to M.W. on the phone. Although their divorce had been pending for years,
    defendant and M.W. were still legally married at the time of trial, and there is no
    exception to the marital privilege if the marriage is nonviable. We agree the trial court
    erred.
    A.    Background
    Defendant and M.W. were married in 2004. They had two children together.
    They separated in 2007, and they reunited and separated several times after that. In 2009,
    defendant filed dissolution papers, but the divorce was not final by the time of trial in
    2018 due to filing difficulties. The two have not lived together since 2010.
    The prosecution moved to admit defendant’s prior uncharged acts of domestic
    violence against M.W. M.W. asserted the marital privilege not to testify against
    defendant. (Evid. Code, § 970.) The trial court found there was no marital privilege.
    Relying on California family law’s use of the date of separation as the demarcation for
    determining divorcing spouses’ community and separate property, the court determined
    that the right to the marital privilege ended when the parties separated, even though they
    were still legally married. (See Fam. Code, §§ 771, 70.)
    7
    As a result, M.W. testified to four incidents of physical abuse by defendant against
    her. On February 26, 2009, defendant questioned M.W. in his car about one of her male
    friends. He hit M.W. in the face. M.W. swung back and kicked him. She tried to get out
    of the car, but he locked the doors and drove off. She repeatedly asked to get out of the
    car, but he drove her to his house and made her talk with him there.
    On March 17, 2009, defendant slapped M.W., and she grabbed him by the hair and
    pulled him to the ground. They let each other get up, but defendant took her phone and
    her purse. As she walked home, defendant turned around and pulled up in his car. When
    he got out, he started hitting her. She again pulled him by his hair to the ground as he
    continued hitting her. They let each other up and went to his home. Defendant let her
    leave around 7:00 a.m.
    On the evening of June 26, 2010, defendant and M.W. were at a club celebrating
    her birthday with her sister, her sister’s husband, and others. After becoming agitated
    with someone at the club, defendant drove the group to M.W.’s sister’s house. He drove
    erratically, almost crashing into a wall and other cars. At her sister’s house, M.W. tried
    to open her door to get out of the car, but defendant pulled it shut. Once she got out,
    defendant grabbed her by her arms so hard they both fell to the ground. She kicked him
    hard enough that he fell off of her. He got into his car and drove off. M.W. got into her
    sister’s car, and as they drove off, defendant pulled up and cut them off. Her sister put
    the car in reverse, but defendant ran up, grabbed the mirror, and yelled at M.W. to get
    out. Her sister slowed down, and defendant got off the car. M.W. called 911.
    On March 17, 2012, M.W. met defendant at a bar he owned. While she was there,
    defendant told someone she was his wife and she was cheating on him. This made her
    feel uncomfortable because they had been separated for years, so she left. Defendant
    chased after her and pushed her. She pushed back and they both began punching each
    other. She ran off to get away from him, but he found her and told her to get into his car.
    She was lost, so she got in. She wanted to go home, but he took her to his house. They
    8
    argued, but eventually they had sex. She did not want to have sex with him, but she did
    not object because she just wanted the night to be over.
    In addition to relating defendant’s prior acts, M.W. testified under the fresh
    complaint doctrine, over defendant’s objection, about Hazel’s statement to her during
    their phone call. M.W. stated that defendant contacted her on June 10, 2017. He asked
    her to return Hazel’s purse. He also asked her to ask Hazel for his gun back. He said
    Hazel had taken his gun the night prior. Defendant came by M.W.’s home and gave her
    the purse. M.W. then called Hazel to let her know she was on her way to Hazel’s house.
    Hazel said she was not home, but M.W. could still drop the purse off. Hazel also told her
    what had happened. She and defendant had a physical alteration, and she fled the house
    without her bag. She said defendant held her against her will, hit her several times,
    forced her to have sex with him, and that a gun was involved. M.W. said that Hazel
    sounded upset. It did not sound to M.W. that Hazel was making it up.
    B.        Analysis
    Defendant contends the trial court erred when it ruled that the marital testimony
    privilege did not apply to M.W. and ordered her to testify. The privilege is given to
    “married person[s],” and defendant and M.W., though separated, were still legally
    married. (Evid. Code, § 970.) Defendant argues that the trial court’s use of family law to
    hold that the marriage privilege did not apply because they were separated violated the
    clear and express terms of the statutory privilege and wrongfully created an exception to
    the privilege.
    In California, no person has a privilege to refuse to be a witness except as
    otherwise provided by statute. (Evid. Code, § 911, subd. (a).) All evidentiary privileges
    are statutory. (People v. Sinohui (2002) 
    28 Cal.4th 205
    , 211 (Sinohui).) We thus
    interpret them by applying the rules of statutory construction. (Id. at pp. 211-212.)
    9
    “ ‘When we interpret a statute, “[o]ur fundamental task . . . is to determine the
    Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory
    language, giving it a plain and commonsense meaning. We do not examine that language
    in isolation, but in the context of the statutory framework as a whole in order to
    determine its scope and purpose and to harmonize the various parts of the enactment. If
    the language is clear, courts must generally follow its plain meaning unless a literal
    interpretation would result in absurd consequences the Legislature did not intend. If the
    statutory language permits more than one reasonable interpretation, courts may consider
    other aids, such as the statute’s purpose, legislative history, and public policy.”
    [Citation.] “Furthermore, we consider portions of a statute in the context of the entire
    statute and the statutory scheme of which it is a part, giving significance to every word,
    phrase, sentence, and part of an act in pursuance of the legislative purpose.” ’ (Sierra
    Club v. Superior Court (2013) 
    57 Cal.4th 157
    , 165-166.)” (City of San Jose v. Superior
    Court (2017) 
    2 Cal.5th 608
    , 616-617.)
    In addition to the rules of statutory construction, we are guided by rules governing
    evidentiary privileges. (Sinohui, 
    supra,
     28 Cal.4th at p. 212.) “Because privileges
    ‘prevent the admission of relevant and otherwise admissible evidence,’ they ‘should be
    narrowly construed.’ (People v. McGraw (1983) 
    141 Cal.App.3d 618
    , 622 [].) Applying
    this maxim in the marital privileges context, our courts have broadly construed the
    exceptions to these privileges.” (Sinohui, 
    supra,
     28 Cal.4th at p. 212.)
    However, judicial construction of evidentiary privileges is nonetheless restricted.
    “The privileges set out in the Evidence Code are legislative creations; the courts of this
    state have no power to expand them or to recognize implied exceptions.” (Wells Fargo
    Bank v. Superior Court (2000) 
    22 Cal.4th 201
    , 206, italics added.) An evidentiary
    privilege “is a legislative creation, which courts have no power to limit by recognizing
    implied exceptions.” (Costco Wholesale Corp. v. Superior Court (2009) 
    47 Cal.4th 725
    ,
    739.) The area of privileges “is one of the few instances where the Evidence Code
    10
    precludes the courts from elaborating upon the statutory scheme.” (Cal. Law Revision
    Com. com., West’s Ann. Cal. Evid. Code, foll. § 911.)
    Evidence Code section 970 codifies the marital testimony privilege. It states,
    “Except as otherwise provided by statute, a married person has a privilege not to testify
    against his [or her] spouse in any proceeding.” A married person also has a privilege not
    to be called as a witness in any proceeding to which his or her spouse is a party. (Evid.
    Code, § 971.) The Legislature codified exceptions to the privilege in Evidence Code
    section 972. For example, an exception to the privilege exists for a criminal proceeding
    in which one spouse is charged with a crime against the person or property of another
    spouse or a crime against the person or property of a third person committed in the course
    of committing a crime against the person or property of the other spouse. (Evid. Code,
    § 972, subd. (e).) That exception does not apply in this matter. However, statutory
    exceptions to the privilege do not include the spouses’ separation prior to dissolution or
    for the marriage becoming nonviable. “The purpose of the spousal testimony privilege is
    to preserve marital harmony.” (People v. Sinohui, 
    supra,
     28 Cal.4th at p. 213.)
    Jurisdictions that recognize some form of this privilege “do so because the privilege
    allegedly ‘ “preserve[s] marital harmony,” ’ ‘ “protect[s] marital privacy,” ’ and
    ‘ “promote[s] the socially beneficial institution of marriage.” ’ [Citation.]” (Id. at
    p. 211.) “The rationale of the privilege provided by Section 970 not to testify against
    one’s spouse is that such testimony would seriously disturb or disrupt the marital
    relationship. Society stands to lose more from such disruption than it stands to gain from
    the testimony which would be available if the privilege did not exist.” (Cal. Law
    Revision Com. com., West’s Ann. Cal. Evid. Code, foll. § 970.)
    The marital privilege is available until the marriage is dissolved by a final
    judgment of dissolution even though the marriage became nonviable years before.
    (Jurcoane v. Superior Court (2001) 
    93 Cal.App.4th 886
    , 900 (Jurcoane).) The privilege
    is not available after the marital relationship is terminated by divorce. (People v. Dorsey
    11
    (1975) 
    46 Cal.App.3d 706
    , 716-717.) But if a final decree of divorce has not been
    obtained, the testifying spouse may claim a privilege not to be a witness. (Id. at p. 717.)
    Jurcoane addressed the issue raised here. In Jurcoane, the court of appeal held
    that the marital privilege applied even if the couple had been separated for many years
    but the marriage had not been formally dissolved. There, the husband fled the country
    after he was charged with murder. The husband and wife never divorced, but they had no
    contact with each other for 17 years. During that time, the husband assumed a false
    name, claimed Mexican citizenship, resumed his work as an auto mechanic, and lived
    with a Mexican woman. He never provided economic assistance to his wife. After his
    extradition, the wife asserted the marital privilege not to testify at the husband’s
    preliminary hearing. (Id., supra, 93 Cal.App.4th at pp. 889-891.)
    The court of appeal held that the wife’s assertion of the privilege was lawful. The
    issue was one of statutory interpretation subject to the court’s lack of authority to imply
    the existence of exceptions to the privilege. Evidence Code section 970 granted the
    privilege unambiguously to “married persons.” The Legislature had defined how a legal
    marriage was brought into being, and it had “defined how marriages can be dissolved:
    ‘Marriage is dissolved only by one of the following: [¶] (a) The death of one of the
    parties. [¶] (b) A judgment of dissolution of marriage. [¶] (c) A judgment of nullity of
    marriage.’ (Fam. Code, § 310, italics added.)” (Jurcoane, supra, 93 Cal.App.4th at
    p. 896.) “[T]he statutes defining the marital testimonial privilege facially do not include
    a proposed exception to the privilege where a still legally intact marriage is ‘moribund,’
    ‘abandoned,’ or ‘no longer viable[,]’ ” and the court had no authority to imply the
    existence of such an exception to the privilege. (Id. at p. 897.) Because the wife was a
    married person at the time of the hearing, her claim of marital privilege was lawful even
    though she had not seen her husband for 17 years. (Id. at p. 900.)
    Jurcoane’s reasoning applies here. The evidence is undisputed that defendant’s
    marriage to M.W. is no longer viable. However, the marriage had yet to be terminated by
    12
    a final judgment of dissolution. Because the statutory language of the marital privilege
    and its exceptions is clear, and because we have no authority to imply the existence of an
    additional exception to the privilege, we must hold that M.W.’s claim of marital privilege
    was lawful.
    The Attorney General contends we should not follow Jurcoane for a number of
    reasons. He argues that contrary to Jurcoane’s holding, the terms “married persons” or
    “spouses” as used in the privilege statute are not facially clear. He claims that looking at
    the terms, one cannot tell whether they include such relationships as bigamous or
    polygamous marriages, common law marriages from other states, domestic partnerships,
    putative spouses, or cohabitants.
    The Attorney General’s concerns are unfounded. Case authority has made clear
    who “married persons” are for purposes of the marital privilege. If a defendant’s
    marriage is illegal and void, the defendant’s purported spouse has no right to assert the
    marital privilege. (See People v. Gallego (1990) 
    52 Cal.3d 115
    , 176-177.) For example,
    the privilege does not exist in a bigamous marriage, an incestuous marriage, or in a
    marriage entered into solely for fraudulent purposes. (Ibid. [bigamous]; People v.
    MacDonald (1938) 
    24 Cal.App.2d 702
    , 704-707 [incestuous]; Lutwak v. United States
    (1953) 
    344 U.S. 604
    , 614 [
    97 L.Ed. 593
    ] [sham marriage].) The marital privilege also
    does not extend to unmarried cohabitants. (People v. Delph (1979) 
    94 Cal.App.3d 411
    ,
    415-416.) And a putative spouse by definition is not a party to a valid marriage. (Fam.
    Code, § 2251, subd. (a).)
    On the other hand, California recognizes the validity of a common law marriage
    contracted in another state which would be valid under the laws of that state. (Knight v.
    Superior Court (2005) 
    128 Cal.App.4th 14
    , 19.) And registered domestic partners “have
    the same rights, protections, and benefits,” and are “subject to the same responsibilities,
    obligations, and duties under law,” whether those rights and duties are derived from
    “statutes, administrative regulations, court rules, government policies, common law, or
    13
    any other provisions or sources of law, as are granted to and imposed upon spouses.”
    (Fam. Code, § 297.5, subd. (a).) Arguably, common law spouses and domestic partners
    would be entitled to exercise the marital privilege. The Attorney General’s argument
    does not establish that the terms “married persons” and “spouses” in Evidence Code
    section 970 are not clear or are ambiguous.
    The Attorney General argues that even if the terms “married persons” and
    “spouse” are clear and unequivocal, the “plain meaning” rule does not prevent us from
    determining whether the literal meaning of the statute comports with its purpose. Under
    California School Employees Assn. v. Governing Bd. (1994) 
    8 Cal.4th 333
     (California
    School Employees Assn.), courts will not follow the plain meaning of statutory language
    when to do so would frustrate the manifest purposes of the legislation as a whole or lead
    to absurd results. (Id. at p. 340.) “If the [statutory] language is clear, courts must
    generally follow its plain meaning unless a literal interpretation would result in absurd
    consequences the Legislature did not intend.” (City of San Jose v. Superior Court, supra,
    2 Cal.5th at p. 616.)
    The Attorney General claims that allowing the privilege here would lead to absurd
    results. Relying on the privilege’s statutory language where a couple is all but officially
    divorced defeats the privilege’s purpose. When the parties have factually severed the
    relationship, little reason exists to protect marital harmony. Privileges “are looked upon
    with disfavor” because “granting of a claim of privilege can serve only to ‘shut out the
    light[.]’ ” (People v. Delph, supra, 94 Cal.App.3d at p. 415, quoting McCormick on
    Evidence (2nd ed. 1972), § 77, p. 156.) Applying the privilege here where there is no
    marital relationship to protect, unnecessarily excludes evidence where no private interest
    is at stake. The Attorney General contends that we should interpret the marital privilege
    narrowly—or more narrowly than the meaning of its clear language—so that it is limited
    to the Legislature’s intended purposes. That is, according to the Attorney General, the
    14
    marital privilege should apply only when it serves to protect marital harmony and open
    communication between spouses.
    The Attorney General further argues that the trial court’s reliance on California
    family law’s use of the date of separation was a reasonable basis to determine when the
    privilege will no longer further its legislative purpose. The trial court based its ruling that
    the privilege did not apply on the demarcation provided by the Family Code for
    determining a divorcing couple’s community and separate property. Family Code section
    771 declares that the earnings and accumulations of a spouse after the “date of
    separation” are the separate property of that spouse. (Fam. Code, § 771, subd. (a).)
    Family Code section 70 defines the “date of separation” as “the date that a complete and
    final break in the marital relationship has occurred, as evidenced by both of the
    following: (1) The spouse has expressed to the other spouse the intent to end the
    marriage[; and] (2) The conduct of the spouse is consistent with the intent to end the
    marriage.” (Fam. Code, § 70, subd. (a).) The Attorney General argues the date of
    separation so defined is a reasonable basis for determining when the purposes of the
    marital privilege—promoting marital harmony—are no longer served.
    The Attorney General’s policy argument may have merit. However, as already
    stated, the Legislature and the California Supreme Court have restricted our authority to
    construct an evidentiary privilege beyond its unambiguous terms. California courts “do
    not enjoy the freedom to restrict California’s [evidentiary privileges] based on notions of
    policy or ad hoc justification.” (Wells Fargo Bank v. Superior Court, supra, 22 Cal.4th at
    p. 209.) “[W]e have no power to create such exceptions.” (Id. at p. 208.) We are aware
    of no published opinion where a California appellate court construing an evidentiary
    privilege has implied the existence of an exception to the privilege by exercising its
    authority recognized in California School Employees Assn. not to follow the plain
    meaning of the privilege’s statutory language where doing so would result in absurd
    consequences the Legislature did not intend.
    15
    The Attorney General cites People v. Gomez (1982) 
    134 Cal.App.3d 874
     to
    suggest that courts are amenable to the argument. The defendant there pursuant to
    Evidence Code section 980 sought to exclude from evidence threatening statements he
    made to his estranged spouse. Evidence Code section 980 privileges confidential
    communications between spouses. The trial court ruled the evidence was admissible, as
    the threats were made in the presence of others and were not confidential. The court of
    appeal affirmed on that basis. (Id. at p. 879.)
    However, before reaching its decision, the court stated it was “leav[ing] aside the
    issue whether the privilege was intended to apply to communications made after a couple
    has separated but before the legal dissolution of the marriage is final.” (People v. Gomez,
    supra, 134 Cal.App.3d. at p. 879.) In a footnote, the court stated, “The purpose of the
    privilege is to encourage free and open communication between spouses. (See Evid.
    Code, § 980, [C]omment, Law Revision Com[mission].) Once the parties have factually
    severed the relationship, little reason exists to protect the couple’s communications or to
    extend a privilege to a confidential relationship that no longer exists.” (Id. at p. 879,
    fn. 1.)
    The court of appeal’s statement is dicta and has no precedential value. The court
    also made no mention of the restrictions the Legislature and the Supreme Court have
    placed on our authority to imply an exception to an evidentiary privilege. Again,
    exceptions to the privilege are limited to those adopted by the Legislature. (Wells Fargo
    Bank v. Superior Court, supra, 22 Cal.4th at p. 206.) Given the statutory nature of
    privileges and their exceptions, if the Legislature had intended to terminate the marital
    privilege upon a married couple’s separation, it could have adopted such a provision
    similar to Family Code section 70. The omission of such an exception indicates the
    Legislature did not intend for the privilege to end upon separation prior to divorce. (See
    id. at p. 207 [“If the Legislature had intended to restrict [the attorney-client privilege], it
    16
    would likely have declared that intention unmistakably, rather than leaving it to courts to
    find the restriction by inference . . . .”].)
    We also are not convinced that granting the privilege in this instance results in
    absurd consequences the Legislature did not intend. At trial, M.W. testified that she did
    not want to be in court testifying against defendant. She was trying to coexist with
    defendant in order to raise their children. The Legislature could rationally believe that
    protecting estranged spouses from testifying against each other as they attempt to co-
    parent their children ‘ “promote[s] the socially beneficial institution of marriage” ’ and
    protects society from the harm further disruption to their relationship may cause. (People
    v. Sinohui, 
    supra,
     28 Cal.4th at p. 211; Cal. Law Revision Com. com., West’s Ann. Cal.
    Evid. Code, foll. § 970.)
    We thus hold the trial court erred when it denied M.W.’s assertion of the marital
    testimonial privilege and ordered her to testify. We will determine whether the error was
    prejudicial after considering defendant’s other evidentiary arguments.
    II
    Admission of Propensity Evidence
    Defendant claims the trial court erred by admitting evidence of his uncharged acts
    of abuse against M.W. and another former girlfriend, L.W., pursuant to Evidence Code
    sections 1109 and 1101, subdivision (b). We have already described M.W.’s testimony
    of defendant’s prior acts and determined the court erred by admitting M.W.’s testimony.
    But we conclude the trial court did not err in admitting L.W.’s testimony under Evidence
    Code section 1109 (section 1109), and we do not reach defendant’s arguments under
    Evidence Code section 1101 (section 1101).
    17
    A.      Background
    The prosecutor sought to introduce evidence of an uncharged act defendant
    committed against L.W. under section 1109. Defense counsel objected that admitting the
    evidence would be unduly prejudicial under Evidence Code section 352 (section 352).
    Counsel claimed that L.W. instigated the incident. He argued that admitting her
    testimony would be “a mini trial within a trial,” consuming an undue amount of the
    court’s time, as counsel would take a day to call three to four witnesses to testify
    concerning the incident. The prosecutor argued that L.W.’s testimony would take no
    more than 30 minutes of the trial, and its probative value of showing defendant’s
    propensity to commit domestic violence outweighed any prejudicial effect.
    The trial court granted the prosecution’s request. Applying the test of undue
    prejudice from section 352, the court found the evidence’s probative value was high
    “given the nature of the charges and the allegations that are being made.” It also found
    that the evidence’s probative value was not substantially outweighed by the consumption
    of time needed to present it. Even if defense counsel called three or four witnesses to
    rebut the testimony, those witnesses would not consume an undue amount of time given
    the trial’s anticipated length.
    At trial, L.W. testified that she and defendant lived together for two or three
    months in 2012. They have a child. On the evening of September 8, 2013, L.W. dropped
    their then seven-month old baby off at defendant’s house for defendant to watch while
    she ran errands. When she returned at approximately 11:00 p.m., there were five or six
    other people there. People were drinking alcohol. She smelled marijuana. This angered
    L.W. as she had wanted defendant to spend time with the baby. Inside, the baby was in a
    jumper that clamped onto a door opening. Defendant’s 11-year-old daughter was in a
    back room by herself.
    18
    L.W. went “ballistic” because defendant had people over instead of watching his
    child. She and defendant began arguing and yelling. Defendant had the baby in his
    hands. Yelling at each other, they walked toward her car with defendant’s daughter.
    L.W. yelled at defendant to hand over the baby. Defendant yelled at L.W. to “just
    fucking leave” multiple times and cussed at her by calling her out of control and words to
    that effect. Someone took the baby from defendant and he and L.W. fought. She hit him
    and “something” hit her mouth, but she did not know which happened first. On rebuttal,
    L.W. said defendant hit her and “got” her in her teeth. This was the first time defendant
    “put hands” on her.
    Detective Shaun McGovern investigated the incident. L.W. told him that as she
    was yelling at defendant to hand over the baby, defendant hit her with an open hand in
    her forehead, and then she was hit again by something hard in her teeth. She said she did
    not strike defendant before he hit her. The detective arrested defendant for domestic
    violence. Upon his arrest, defendant admitted that he had been arrested once for
    assaulting T.G., the mother of his 11-year-old daughter.
    B.     Analysis
    Generally, evidence of specific instances of a defendant’s prior conduct is
    inadmissible to prove his conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).)
    Section 1109 provides an exception to the general rule against propensity evidence.
    Under that statute, “in a criminal action in which the defendant is accused of an offense
    involving domestic violence, evidence of the defendant’s commission of other domestic
    violence is not made inadmissible by Section 1101 if the evidence is not inadmissible
    pursuant to Section 352” and the prior acts occurred no more than 10 years before the
    charged offense. (Evid. Code, § 1109, subds. (a)(1), (e).)
    Defendant claims the trial court erred in admitting evidence of his altercation with
    L.W. under section 1109 because the evidence was unduly prejudicial under section 352.
    19
    He argues that the evidence was not sufficiently probative. It had little reason to prove he
    assaulted Hazel because different victims were involved in different circumstances. He
    also claims the evidence was unduly prejudicial because it would lead the jury to punish
    him for his prior misdeeds rather than judge his guilt in the charged offenses. Introducing
    the evidence also took an undue amount of trial time.
    “Generally, we review a trial court’s decision to admit or exclude evidence for an
    abuse of discretion. (People v. Herrera (2016) 
    247 Cal.App.4th 467
    , 475.) An abuse of
    discretion occurs when a court makes a decision in an ‘arbitrary, capricious or patently
    absurd manner that resulted in a manifest miscarriage of justice.’ (People v. Jordan
    (1986) 
    42 Cal.3d 308
    , 316.) In other words, the decision ‘ “ ‘exceed[ed] the bounds of
    reason, all of the circumstances before it being considered’ ” [citation] or its decision
    [was] “so irrational or arbitrary that no reasonable person could agree with it.” ’ (Wade v.
    Superior Court (2019) 
    33 Cal.App.5th 694
    , 708.)” (People v. Thomas (2021)
    
    63 Cal.App.5th 612
    , 626.)
    “Section 352, which section 1109 ‘expressly incorporates’ (People v. Kerley
    (2018) 
    23 Cal.App.5th 513
    , 532), gives the trial court discretion to exclude or admit
    evidence of past domestic violence after the court weighs the probative value of the
    evidence against ‘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’ (§ 352). The law requires ‘ “the probative value of the
    evidence must be balanced against four factors: (1) the inflammatory nature of the
    uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of
    the uncharged offenses; and (4) the amount of time involved in introducing and refuting
    the evidence of uncharged offenses.” ’ (People v. Culbert [(2013)] 
    218 Cal.App.4th 184
    ,] 192.) ‘ “The principal factor affecting the probative value of an uncharged act is its
    similarity to the charged offense.” ’ (People v. Hollie (2010) 
    180 Cal.App.4th 1262
    ,
    1274.)” (People v. Thomas, supra, 63 Cal.App.5th at p. 630.)
    20
    The trial court did not abuse its discretion when it determined that admitting
    L.W.’s testimony under section 1109 was not unduly prejudicial under section 352. The
    evidence was probative. It tended to show that defendant assaulted women with whom
    he had intimate relationships. In both instances, defendant yelled at the victims, called
    them derogative names, and hit them in the face.
    It is also not likely the jury found him guilty of assaulting Hazel as punishment for
    his assault of L.W. “ ‘ “The ‘prejudice’ referred to in Evidence Code section 352 applies
    to evidence which uniquely tends to evoke an emotional bias against the defendant as an
    individual and which has very little effect on the issues. In applying section 352,
    ‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citation.]’ (People v. Karis (1988)
    
    46 Cal.3d 612
    , 638.)” (People v. Scott (2011) 
    52 Cal.4th 452
    , 491.) Defendant’s assault
    against L.W. was not as severe or as emotionally troubling as his attack on Hazel.
    Further, admission of the evidence did not consume an undue amount of time.
    Defendant claims the evidence required an excessive amount of trial time because it takes
    up 41 pages of the reporter’s transcript. Forty-one pages is a small fraction of the more
    than 1,100 pages of the reporter’s transcript, of which more than 700 pages recorded the
    taking of testimony before the jury.
    The evidence indicates that the trial court did not abuse its discretion when it
    admitted testimony of defendant’s assault of L.W. under section 1109.
    III
    Admission of Fresh Complaint Evidence
    Defendant claims the trial court erred when it admitted Hazel’s “fresh complaint”
    statements to her ex-husband, Maurice Wheatley, and to M.W. explaining what had
    happened during the attack. It assertedly erred because the evidence was used for the
    truth of the matter asserted and because of the length of time that elapsed between the
    attack and when Hazel made the statements. We have already determined it was error to
    21
    admit the testimony from M.W., but the court did not err in admitting fresh complaint
    evidence from Wheatley.
    A.     Background
    The trial court granted the prosecution’s requests to introduce as “fresh complaint”
    evidence Hazel’s statements to Wheatly and M.W. that defendant had assaulted her.
    Wheatley testified that he received a call from Hazel at approximately 3:00 a.m.
    on June 10, 2017. She was at the hospital. She told Wheatley that defendant had pistol
    whipped her and held her hostage. Wheatley went to the hospital and asked Hazel what
    had happened. She told him that defendant was drinking and talking crazy, and that he
    held her hostage and hit her with a gun.
    After a medical test, Hazel said to Wheatley, “[H]e, you know.” Wheatley said,
    “[H]e took it.” Hazel responded, “[Y]eah, he took it.” Wheatley explained that “taking”
    meant “[h]er sexuality, just taking it.”
    Wheatley spoke with Hazel later that day. Hazel described the incident to him,
    explaining that the argument turned into defendant pulling out a gun. Defendant sexually
    assaulted her and pistol whipped her. He was also hitting her on her side.
    B.     Analysis
    “[P]roof of an extrajudicial complaint, made by the victim of a sexual offense,
    disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—
    namely, to establish the fact of, and the circumstances surrounding, the victim’s
    disclosure of the assault to others—whenever the fact that the disclosure was made and
    the circumstances under which it was made are relevant to the trier of fact’s
    determination as to whether the offense occurred.” (People v. Brown (1994) 
    8 Cal.4th 746
    , 749-750.)
    The fresh complaint doctrine is not an exception to the hearsay rule. “In sexual as
    well as nonsexual offense cases, evidence of the fact and circumstances of a victim’s
    22
    complaint may be relevant for a variety of nonhearsay purposes, regardless whether the
    complaint is prompt or delayed. To begin with, if such a victim did, in fact, make a
    complaint promptly after the alleged incident, the circumstances under which the
    complaint was made may aid the jury in determining whether the alleged offense
    occurred. Furthermore, admission of evidence that such a prompt complaint was made
    also will eliminate the risk that the jury, if not apprised of that fact, erroneously will infer
    that no such prompt complaint was made.” (People v. Brown, 
    supra,
     8 Cal.4th at p. 761.)
    Defendant contends the trial court erred because it did not instruct the jury that the
    statements were being admitted for a non-hearsay purpose and could be considered only
    for the non-hearsay purposes of establishing the fact of the assault. The trial court,
    however, has no duty to instruct on the limited purpose for which the evidence is
    admitted unless the party requests the instruction. (People v. Brown, 
    supra,
     8 Cal.4th at
    p. 757; People v. Manning (2008) 
    165 Cal.App.4th 870
    , 880.) Defendant did not request
    an instruction to that effect.
    Defendant asserts that the prosecutor in her closing arguments used the evidence
    for the truth of the matter asserted. Defendant, however, did not object to the
    prosecutor’s argument and thus forfeited this contention. (See People v. Seumanu (2015)
    
    61 Cal.4th 1293
    , 1361-1362.)
    Defendant also claims the statements should have been excluded because of their
    timing. But he also recognizes that “[t]he passage of time is not a decisive factor
    regarding the admission of fresh complaint statements.” (People v. Brown, 
    supra,
    8 Cal.4th at p. 750.) And even if it was, not much time passed before Hazel made the
    complaints. She made her first statement to Wheatley approximately an hour and a half
    after she escaped defendant’s apartment. Wheatley went to the hospital, where Hazel
    made two other statements to him. She made a fourth statement to him later that same
    day. The trial court did not abuse its discretion in admitting Wheatley’s testimony of
    Hazel’s complaints.
    23
    IV
    Prejudice
    Defendant contends that the trial court’s evidentiary errors were prejudicial. We
    have determined the court erred only in admitting M.W.’s testimony in violation of her
    marital privilege not to testify. That error is prejudicial if it is reasonably probable the
    jury would have reached a result more favorable to defendant had the court excluded
    M.W.’s testimony. (People v. Watson (1956) 
    46 Cal.2d 818
    , 836.)
    A more favorable verdict was not reasonably probable. Hazel explained what
    happened the night of the attack, and much of her testimony was corroborated. She
    testified that defendant kept her in his apartment against her will for approximately an
    hour and 15 minutes. During that time, he repeatedly hit her with his fist and with a gun.
    She escaped only after he went to the bathroom, but she left her purse behind. She hid in
    bushes near defendant’s apartment. Later that morning, M.W. called Hazel to arrange to
    return Hazel’s purse to her from defendant.
    Text messages between Hazel and L.T. corroborated Hazel’s testimony. Hazel
    texted that she could not speak then, presumably because defendant was looking for her.
    She told L.T. that defendant had hit her with a gun. When L.T. picked up Hazel, she saw
    Hazel run from the bushes to her car. Hazel was wearing only one shoe and was covered
    in dirt.
    Hazel’s and L.T.’s calls to 911 further indicated defendant had hit Hazel with a
    gun. Hazel only whispered so as not to be detected. Photos of her injures were shown to
    the jury. Additionally, the jury heard of Hazel’s fresh complaint of the attack to
    Wheately. The jury also heard from Hazel and L.W. about defendant’s history and
    propensity to physically abuse women with whom he had an intimate relationship.
    Unlike Hazel’s testimony, defendant’s version of the incident was not as strongly
    corroborated. Defendant testified that Hazel started the altercation by punching him in
    24
    the chest when they argued after having sex. Defendant pushed her off the bed and onto
    the floor. She got up and charged him. He grabbed her right arm to stop her from
    swinging at him. A photo of Hazel’s forearm appeared consistent with the area he
    grabbed. Holding her arm, he pushed her back into a dresser. She grabbed a toy and
    tried to hit him with it. He grabbed her arm again to stop her. That stopped the
    altercation. Defendant testified he only pushed her; he never punched her. He did not
    pull his gun out that night. He did not know how Hazel got the markings on her face.
    Defendant’s testimony does not explain why Hazel suffered injuries from being
    pistol whipped in the head. It does not explain why Hazel hid in the bushes outside
    defendant’s apartment waiting for police and L.T. to help. Nor does it explain why Hazel
    asked L.T. to call the police for her and could not talk with L.T. as she hid from
    defendant.
    Considering this evidence, we conclude it is not reasonably probable the jury
    would have reached a verdict more favorable for defendant had the trial court excluded
    M.W.’s testimony.
    V
    Staying of Sentence for False Imprisonment Under Section 654
    Over defendant’s objection, the trial court did not stay the sentence on the false
    imprisonment count under section 654. It determined the assault and the imprisonment
    were separate offenses with different objectives. The false imprisonment occurred when
    defendant used his body to push Hazel down the hall and into his bedroom. The assault
    and corporal injury were senseless violence that was severable from the imprisonment
    and occurred after defendant and Hazel had sex.
    The court stated it would run the false imprisonment sentence consecutively to the
    assault sentence because the offenses were separate acts. The objective of the false
    25
    imprisonment was sex. The objective of the assault was punishment and retribution. The
    offenses also were not committed concurrently.
    Defendant contends that the trial court erred when it did not stay his sentence for
    the false imprisonment count. Section 654 prohibits multiple punishments for the same
    act. He asserts that false imprisonment is a continuing offense, and here it overlapped
    with the assault. Defendant’s restraint of Hazel continued up through the time he
    assaulted her. The two offenses involved the same act and the same criminal intent.
    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.”
    “Whether a defendant may be subjected to multiple punishment under section 654
    requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may
    include not only a discrete physical act but also a course of conduct encompassing several
    acts pursued with a single objective. (See Neal [v. State (1960)] 55 Cal.2d [11,] 19;
    People v. Beamon (1973) 
    8 Cal.3d 625
    , 639.) We first consider if the different crimes
    were completed by a ‘single physical act.’ ([People v.] Jones [(2012)] 54 Cal.4th [350,]
    358.) 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. (Id. at p. 359; see also People v. Mesa (2012) 
    54 Cal.4th 191
    , 199 [] [‘Our case law has found multiple criminal objectives to be a predicate for
    multiple punishment only in circumstances that involve, or arguably involve, multiple
    acts’].)” (People v. Corpening (2016) 
    2 Cal.5th 307
    , 311-312.)
    “ ‘The proscription against double punishment in section 654 is applicable where
    there is a course of conduct which . . . comprises an indivisible transaction punishable
    under more than one statute . . . . The divisibility of a course of conduct depends upon
    26
    the intent and objective of the actor . . . .’ [Citation.] ‘The defendant’s intent and
    objective are factual questions for the trial court; [to permit multiple punishments,] there
    must be evidence to support a finding the defendant formed a separate intent and
    objective for each offense for which he was sentenced. [Citation.]’ (People v. Adams
    (1982) 
    137 Cal.App.3d 346
    , 355.)” (People v. Coleman (1989) 
    48 Cal.3d 112
    , 162.)
    We must uphold the trial court’s determination that defendant’s crimes for
    purposes of section 654 were separate and involved separate intents and objectives if
    substantial evidence supports the determination. (People v. Kelly (2018) 
    28 Cal.App.5th 886
    , 903.)
    Substantial evidence supports the court’s determination. Defendant’s offenses
    involved a course of conduct during which he committed separate offenses with separate
    objectives. He tried to kiss Hazel and blocked her from leaving his apartment. He used
    his body to back her down the hall, into his bedroom, and onto the bed. He held her
    down on the bed with his forearm while he tried to take off her clothes. This was false
    imprisonment. His purpose of preventing Hazel from leaving was to have sex with her.
    Once he fulfilled that objective, however, his demeanor “totally changed.” Instead
    of pursuing sex, he put on his clothes, then yelled and ranted at Hazel and accused her of
    prostituting herself. He became so enraged that he hit her with his fist numerous times.
    Then he pointed a gun at her and hit her with it several more times. His objective in
    hitting her was obviously not to pursue sex. He sought to injure her, perhaps because she
    did not enjoy the sex, perhaps because she was dating someone else. Whatever the
    reason, it was not the same objective he had when he backed her into his bedroom.
    Defendant claims the false imprisonment and the assault were the same act with
    the same intent because false imprisonment continued up through the time defendant
    assaulted Hazel with the firearm. Temporal proximity, however, is not the sole
    determinant of whether the course of conduct was indivisible. “[M]ultiple punishment
    also may be imposed where the defendant commits two crimes in pursuit of two
    27
    independent, even if simultaneous, objectives.” (People v. Douglas (1995)
    
    39 Cal.App.4th 1385
    , 1393-1394, italics added.) Multiple punishment based on a finding
    of “different, if simultaneous, intents . . . remains appropriate.” (People v. Latimer
    (1993) 
    5 Cal.4th 1203
    , 1216.)
    Defendant contends he has a due process right in the correct application of section
    654 to his sentence. Assuming he does, any such right was not violated here. Substantial
    evidence supports the trial court’s determination that defendant harbored separate intents
    and objectives when he falsely imprisoned Hazel and when he assaulted her with a
    semiautomatic firearm.
    VI
    Use of Same Fact in Aggravation of Base Count and for the Enhancement
    Defendant claims the trial court improperly used dual facts when it sentenced him,
    resulting in two sentencing errors: (1) the court used the use of a firearm to impose the
    upper term for the assault with a firearm, but the firearm use was also an element of the
    assault offense; and (2) the court imposed the upper term for the assault offense without
    first striking the firearm enhancement.
    Defendant correctly acknowledges that this claim is forfeited because defense
    counsel did not object to the sentence at trial. (People v. Scott (1994) 
    9 Cal.4th 331
    ,
    353.) However, defendant argues that we should address the error on the merits in order
    to avoid a claim of ineffective assistance of counsel in habeas proceedings.
    In order to demonstrate ineffective assistance of counsel, defendant must first
    show his counsel’s performance was “deficient” because counsel’s “representation fell
    below an objective standard of reasonableness . . . under prevailing professional norms.”
    (Strickland v. Washington (1984) 
    466 U.S. 668
    , 687-688 [
    80 L.Ed.2d 674
    ].) Defendant
    cannot make this showing because any objection by counsel would have been futile. The
    trial court did not err.
    28
    The California Rules of Court provide our answer. Rule 4.420(d) prohibits a court
    from using a fact which is an element of the convicted offense to impose a particular
    term. And rule 4.420(c) authorizes a court to use a fact charged and found as an
    enhancement as the reason for imposing a particular term only if the court strikes the
    enhancement. Thus, had the court relied solely on defendant’s firearm use—a fact that
    was an element of the assault offense and a separate enhancement which the court did not
    strike—to impose the upper term on the assault offense, the court would have erred.
    The court, however, did not rely just on defendant’s firearm use to impose the
    upper term and not strike the enhancement. It also relied on the following factors:
    “The crime involved great violence, great bodily harm, threat of great bodily
    harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;”
    “The defendant has engaged in violent conduct that indicates a serious danger to
    society;” and
    “The defendant’s prior convictions as an adult or sustained petitions in juvenile
    delinquency proceedings are numerous or of increasing seriousness[.]” (Cal. Rules of
    Court, rule 4.421(a)(1), (b)(1), (2).)
    The court needed only a single aggravating factor other than defendant’s firearm
    use to impose the upper term and not strike the enhancement. (People v. Osband (1996)
    
    13 Cal.4th 622
    , 728.) Here, it found three additional aggravating factors.
    Because counsel’s decision not to object to this aspect of the sentence was not
    deficient, counsel did not render ineffective assistance to defendant.
    29
    DISPOSITION
    The judgment is affirmed.
    HULL, J.
    We concur:
    RAYE, P. J.
    MURRAY, J.
    30
    

Document Info

Docket Number: C089464

Filed Date: 9/10/2021

Precedential Status: Precedential

Modified Date: 9/11/2021