People v. Brasuell CA2/6 ( 2022 )

Filed 9/26/22 P. v. Brasuell CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B308124
(Super. Ct. No. 18F-04077)
Plaintiff and Respondent, (San Luis Obispo County)
v.
JESS DRUE BRASUELL III,
Defendant and Appellant.
Jess Drue Brasuell III appeals a judgment following
conviction of encouraging a minor to use a controlled substance
(four counts); oral copulation of a minor (three counts); contacting
a minor for a sex offense; contacting a minor for a lewd purpose
(three counts); possession of child pornography; rape by use of
drugs; forcible oral copulation (two counts); assault with intent to
commit a sex offense; commission of a lewd act on a child;
unlawful sexual intercourse with a minor (two counts); sexual
penetration with a foreign object; misdemeanor battery; and
using a minor for sex acts. (Health & Saf. Code, § 11380, subd.
(a); Pen. Code, §§ 288a, subd. (b)(1), 288.3, subd. (a), 288.4, subd.
1
(b), 311.11, subd. (a), 261, subd. (a)(3), 288a, subd. (c)(2)(A), 220,
subd. (a)(2), 288, subd. (c)(1), 261.5, subd. (c), 289, subd. (h), 242,
311.14, subd. (c).)1
This appeal concerns 21 charged sex and drug offenses,
among others, that Brasuell committed against four minor
teenage girls who were friends or classmates of his son. Brasuell
represented himself at trial until the trial court terminated his
self-representation for his disruptive behavior and failure to
observe evidentiary rulings. On appeal, Brasuell raises issues of
the court’s refusal to appoint advisory counsel, instructional
errors, lack of sufficient evidence to support conviction of rape by
drug intoxication (count 7), and application of newly amended
sentencing statutes to his sentence. We reject these contentions
and affirm.
FACTUAL AND PROCEDURAL HISTORY
Crimes Against L.D.2
(Counts 1-4)
L.D. attended high school with Brasuell’s son and spent
time with him smoking marijuana at the Brasuell home.
Between August 2014 and January 2015, L.D. was at the
Brasuell home three to five nights a week. When she was 16 or
17 years old, Brasuell provided L.D. with drugs – Adderall,
Ritalin, methamphetamine, marijuana concentrate, Xanax, and
alcohol. L.D. became addicted to methamphetamine, which
Brasuell furnished her “to teach [her] a lesson.”
1 All further statutory references are to the Penal Code
unless stated otherwise.
2 We refer to the victims by initials; the D initial represents
the name “Doe.”
2
Brasuell made sexual advances to L.D. and began to
pressure her for sexual acts. L.D. testified that she allowed
Brasuell to orally copulate her in exchange for money to pay a
drug dealer. On a second occasion, L.D. masturbated Brasuell in
exchange for money to pay a drug dealer.
In February 2015, L.D. left the Brasuell home and
eventually moved back home with her parents. Brasuell sent
L.D. messages through Facebook, but she blocked him from her
account.
Crimes Against C.D.
(Counts 5-8)
C.D. dated Brasuell’s son for several years and met
Brasuell when she was 17 years old. Brasuell provided her with
Adderall, Xanax, Valium, and Oxycontin. C.D. admitted that she
was addicted to drugs and consumed them daily.
C.D. and Brasuell had a “sex-for-drugs” arrangement. On
August 3, 2015, Brasuell pinned her down and forcibly copulated
her. C.D. physically resisted and told him “no.” On several
occasions, Brasuell took photographs of C.D. when she was nude.
On another occasion, when C.D. was drunk, Brasuell engaged in
sexual activity with her and promised her money, cigarettes, and
drugs. C.D. was unable to walk or hold herself up and could not
recall much of the encounter because she lost consciousness.
Brasuell recorded the encounter which included oral copulation
and intercourse.
C.D. believed that submitting to Brasuell’s sexual demands
was her only option to receive drugs. She was also frightened of
Brasuell because she had seen him act violently toward his son
and he weighed twice as much as her.
3
After C.D. turned 18 years old, she stopped visiting the
Brasuell home. C.D. later had a psychotic break, was diagnosed
with schizophrenia, and stayed 18 months in a psychiatric
hospital. She also spent time in juvenile hall where she informed
law enforcement that Brasuell gave her drugs and engaged in
sexual activity with her. By 2017, C.D. stopped taking drugs.
Her mother credited a conservatorship over C.D. with helping
C.D. break away from Brasuell.
Crimes Against T.D.
(Counts 9-11)
T.D. was a friend of Brasuell’s son. When she was 12 years
old, she suffered a traumatic brain injury and now experiences
anxiety and depression. T.D. visited the Brasuell home daily
when she was 15 years old. There she drank alcohol, smoked
cigarettes, used prescription drugs, and became a drug addict.
T.D. testified that she “would mix [the drugs] together and do all
of them at once.” During one incident, T.D. mixed 10 pills plus
alcohol; she awoke on the sofa wearing lingerie. Brasuell
videotaped T.D. wearing the lingerie and this videotape, plus two
others, were played at trial. T.D. became addicted to Adderall
and Valium, drugs Brasuell referred to as “goodies.”
In February 2016, Brasuell pushed T.D. onto his bed,
reached under her shirt, and grabbed her breasts. She pushed
him away and ran from the room. On February 24, 2016, T.D.
reported this incident to law enforcement.
Crimes Against A.D.
(Counts 12-21)
A.D. met Brasuell when she was 14 years old after
attending a party at his home. Brasuell’s son gave her Valium
and alcohol during the party. She lost consciousness and awoke
4
in bed. Brasuell soon became “the sole provider” of drugs to A.D.
and she became a drug addict.
On two occasions, Brasuell gave A.D. oxycodone in
exchange for oral copulation. A.D. had informed Brasuell of her
age. A.D. soon became intoxicated after consuming oxycodone
and alcohol. Brasuell provided A.D. with other drugs in exchange
for sexual acts. A.D. testified that she “never hung out with
[Brasuell] unless [she] was getting drugs.”
A.D. testified that she had sexual intercourse with Brasuell
10 to 20 times while she was conscious, and one time when she
was unconscious. She also orally copulated him 10 to 25 times.
Brasuell digitally penetrated A.D. on three separate occasions
and also took inappropriate photographs of her on four or five
separate occasions. Brasuell sometimes demanded sexual
activity prior to giving A.D. drugs.
In August 2017, A.D. was living a sober lifestyle. She had
one last sexual encounter involving oral copulation with Brasuell
in exchange for drugs. On November 2, 2017, A.D. participated
in a pretext call to Brasuell. She informed him that she had a
sexually transmitted disease and that he had been her sex
partner. Brasuell responded, “Yeah, okay.” Approximately one
month later, Brasuell sought testing for a sexually transmitted
disease.
Uncharged Crimes Against K.B.
Evidence Code Sections 1101 & 1108
K.B. met Brasuell when she dated Brasuell’s son. The son
provided K.B. with drugs daily. Brasuell kept the drugs in his
bedroom and soon he directly provided K.B. drugs. K.B., a foster
care child, then began living in the Brasuell house. Brasuell
5
would offer drugs to K.B. in exchange for information regarding
L.D. of whom he was enamored.
When K.B. was 16 years old, Brasuell bought her lingerie.
He asked her to engage in sexual activity with L.D. but K.B.
refused. Brasuell gave K.B. and L.D. methamphetamine to
smoke. The following day K.B. left the Brasuell house but
returned to retrieve her belongings. She later filed a complaint
with the local police because she was concerned for L.D.’s health
and safety.
Uncharged Crimes Against A.B.
Evidence Code Sections 1101 & 1108
A.B. met Brasuell through his son. During her freshman
year in high school, Brasuell gave her Xanax, Percocet, Tramadol,
oxycodone, methamphetamine, and Adderall. A.B. was already
addicted to heroin.
Brasuell began touching A.B. over her clothing when she
was 14 years old. When she was 17 or 18 years old, they began to
exchange sex acts for drugs. Brasuell later arranged for A.B. to
become his in-home caregiver through the state in-home support
services agency.
A.B. introduced A.D. to Brasuell and explained that
Brasuell exchanged pills for sex acts. When A.D. was 16 years
old, Brasuell engaged in sexual activity with her while she was
unconscious. She informed A.B. and Brasuell admitted this to
A.B. On occasion, A.D. and A.B. would take turns engaging in
sexual activity with Brasuell.
The prosecution gave A.B. immunity from prosecution for
her testimony at trial.
6
Uncharged Conduct Against Stepdaughter
Brasuell’s former wife, Anna, claimed that Brasuell
molested her daughter many years earlier, when the daughter
was five or six years old. Anna related this information to L.D.
and C.D.’s mother. Anna did not testify at trial and this evidence
was elicited by Brasuell during cross-examination of other
witnesses.
Results of Searches
In a search of Brasuell’s residence, police officers recovered
200 prescription pill bottles, many containing controlled
substances, methamphetamine pipes, women’s lingerie, a gun,
and digital files containing photographs of several victims nude
or wearing lingerie.
Defense Testimony
Brasuell’s son testified that his father had many
prescriptions for drugs in his own name, his son’s name, and that
of a long-deceased person. Brasuell’s son denied seeing his father
engage in sexual activities with the young women. He saw
Brasuell provide drugs to some of the women, but not others.
Brasuell testified and denied sexual activity with any of the
four Doe victims. He also denied providing controlled substances
to them. Brasuell admitted using methamphetamine, however,
including with A.B. He also admitted to exchanging drugs for sex
with A.B., who then was 18 years old.
Conviction, Sentencing, & Appeal
The trial court sentenced Brasuell to an aggregate prison
term of 47 years 4 months, including imposition of an upper term
for four counts (counts 1, 7, 8, 10). It stayed sentence pursuant to
section 654 for counts 3 and 11. The court imposed a $10,000
restitution fine, a $10,000 parole revocation restitution fine,
7
ordered victim restitution, and awarded Brasuell 1,216 days
presentence custody credit. (§§ 1202.4, subd. (b), 1202.45.)
Brasuell appeals and contends that: 1) the trial court erred
by refusing to appoint advisory counsel; 2) the court prejudicially
erred by instructing regarding uncharged sex acts; 3) the court
prejudicially erred by not instructing on accomplice liability; 4)
cumulative error has denied him a fair trial; 5) insufficient
evidence supports count 7, rape by drug intoxication; 6) Senate
Bill No. 567 requires resentencing; and 7) Assembly Bill No. 518
requires resentencing.
DISCUSSION
I.
Brasuell argues that the trial court abused its discretion by
not appointing advisory counsel during his period of self-
representation. He contends the error violated his Sixth
Amendment right to the assistance of counsel.
On July 31, 2018, Brasuell filed a Faretta motion to
represent himself, noting that he had a college degree and some
legal training. (Faretta v. California (1975) 422 U.S. 806.) The
trial court granted the motion. On December 14, 2018, Brasuell
filed a declaration seeking the appointment of advisory counsel,
which the court denied. On April 15, 2019, Brasuell again sought
the appointment of advisory counsel but insisted that he would
represent himself. The court refused the request. Approximately
one year later, the court provided notice of a hearing to terminate
Brasuell’s self-representation for disruptive behavior. At that
hearing, the court decided to appoint standby counsel, but not
advisory counsel, for Brasuell. Brasuell was unequivocal in his
request to continue to represent himself.
8
On July 31, 2020, the trial court granted a mistrial based
upon the late discovery of evidence. Brasuell again requested
advisory counsel, but the court denied the request and asked the
standby counsel to remain in that capacity.
Although a defendant has the constitutional rights to
counsel and self-representation, there is no constitutional right to
appointment of standby counsel, advisory counsel, or cocounsel.
(McKaskle v. Wiggins (1984) 465 U.S. 168, 183; People v. Blair
(2005) 36 Cal.4th 686, 723, overruled on another point by People
v. Black (2014) 58 Cal.4th 912, 919.) Thus, “hybrid” forms of
representation, whether labeled cocounsel, advisory counsel, or
standby counsel, are not constitutionally guaranteed. (People v.
Bloom (1989) 48 Cal.3d 1194, 1218.)
Advisory counsel is available to assist a defendant
representing himself but does not represent the defendant.
(People v. Morelos (2022) 13 Cal.5th 722, 738.) A defendant
seeking appointment of advisory counsel must make a showing of
need and the decision to appoint advisory counsel rests with the
trial court’s discretion. (Id. at p. 739.) The factors that the trial
court may consider in exercising its discretion include defendant’s
reasons for the request, defendant’s background and education,
defendant’s demonstrated legal abilities, and the complexity of
the trial issues. (Ibid.) We review the denial of a request for
advisory counsel on a case-by-case basis. (Ibid.)
The trial court did not abuse its discretion by refusing to
appoint advisory counsel. Brasuell possessed a college degree
and some legal training and had filed many motions and
pleadings over the course of the proceedings. (People v. Morelos,
supra, 13 Cal.5th 722, 739 [defendant had high school degree, one
year of college, used law library daily, and submitted numerous
9
legal filings].) Brasuell also made a successful mistrial motion
regarding late discovery documents. The prosecution was not
especially complex and involved the credibility of the young
women that Brasuell victimized. Although there may have been
questions regarding Brasuell’s mental competence in early
proceedings, he was not found incompetent to stand trial.
Brasuell has not established that the court abused its discretion
by appointing standby counsel and not advisory counsel.
II.
Brasuell contends that the trial court committed
instructional error by instructing with CALCRIM No. 375
[“Evidence of Uncharged Offense to Prove Identity, Intent,
Common Plan, etc.”], regarding evidence of uncharged sexual
misconduct against his minor stepdaughter. He asserts that he
elicited the evidence only to show a motive to falsely accuse him
of the charged offenses. Brasuell claims the instruction was
prejudicial and violated his federal and state constitutional right
to due process of law.
Brasuell, in propria persona, elicited evidence during cross-
examination of L.D. and C.D.’s mother that they had heard
rumors that he had molested his six-year-old stepdaughter.
Brasuell then requested the trial court to permit his former wife
to testify. The court denied the request pursuant to Evidence
Code section 352. Brasuell then examined his son regarding the
rumors. In the prosecutor’s rebuttal case, the prosecutor asked
the investigating police detective if he thought Brasuell’s former
wife had orchestrated a grand conspiracy against Brasuell. The
detective replied no. This was the prosecutor’s only question of
any witness regarding the stepdaughter incident.
10
The CALCRIM No. 375 instruction, given as modified,
began: “The People [sic] presented evidence that the defendant
committed another offense of oral copulation with a minor six
years of age, that he provided drugs to other people in exchange
for sexual contact, that he provided drugs and/or alcohol to
minors who did not testify, that was not charged in this case. . . .”
The pattern instruction then continued to describe the People’s
burden of proof and how the jury could and could not use the
evidence. Further, the jury was cautioned against concluding
that the evidence alone was sufficient to prove defendant’s guilt
in this case.
For several reasons, we reject Brasuell’s argument. First,
he has forfeited the argument because he did not object to the
instruction. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) An
exception to forfeiture exists where the substantial rights of the
defendant are affected. (§ 1259.) However, the instruction was
correct and properly given. It limited the jury’s use of the
“stepdaughter evidence” and cautioned regarding its improper
use. Brasuell’s substantial rights were not affected by the correct
instruction. Moreover, Brasuell elicited the evidence through his
cross-examination and has invited any arguable error. He cannot
complain now. (People v. Reynolds (2010) 181 Cal.App.4th 1402,
1408.)
III.
Brasuell asserts that the trial court erred by not
instructing sua sponte concerning accomplice liability, A.B.’s
conduct, and counts 12 through 14 and 19 through 21, all counts
regarding A.D. Brasuell points out that A.B. received immunity
for her testimony, she introduced A.D. to him, and A.B.
participated in sexual activity with him and A.D.
11
Section 1111 provides: “A conviction can not be had upon
the testimony of an accomplice unless it be corroborated by such
other evidence as shall tend to connect the defendant with the
commission of the offense; and the corroboration is not sufficient
if it merely shows the commission of the offense or the
circumstances thereof.” CALCRIM Nos. 334 and 335 instruct
regarding accomplice liability and advise that the testimony or
statements of an accomplice that tends to incriminate a
defendant should be viewed with caution. (People v. Hoyt (2020)
8 Cal.5th 892, 946.) The trial court must instruct sua sponte
regarding accomplice testimony if there is sufficient evidence that
a witness is an accomplice. (People v. Johnsen (2021) 10 Cal.5th
1116, 1155.)
We need not decide if sufficient evidence existed to support
a finding that A.B. was an accomplice to Brasuell. A trial court’s
failure to instruct on accomplice liability is harmless if there is
sufficient corroborating evidence in the record. (People v.
Gonzales and Soliz (2011) 52 Cal.4th 254, 303; People v. Mackey
(2015) 233 Cal.App.4th 32, 125.) Here overwhelming evidence
corroborated A.B.’s testimony. The four Doe victims testified
regarding Brasuell’s sexual activities with them and his provision
of drugs. Brasuell’s son saw his father furnish drugs to several of
the victims. Text messages, photography equipment, and
videotapes also corroborated Brasuell’s criminal acts. Lingerie
and 200 prescription bottles were found in the Brasuell home
during execution of a search warrant. Any instructional omission
was harmless.
IV.
Brasuell argues that the cumulative effect of prejudice
arising from the asserted errors compel reversal. We have either
12
concluded that there is no error or that any error is harmless.
(People v. O’Malley (2016) 62 Cal.4th 944, 1017 [general rule
regarding cumulative error].)
V.
Brasuell contends that insufficient evidence supports his
conviction in count 7, rape by the use of drugs. (§ 261, subd.
(a)(3).) He asserts that there is insufficient evidence that C.D.
was so intoxicated that she did not have the capacity to consent,
pointing out that she sought and obtained money and drugs from
the encounter.
In reviewing the sufficiency of evidence to support a
conviction, we examine the entire record and draw all reasonable
inferences therefrom in favor of the judgment to determine
whether there is reasonable and credible evidence from which a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57.) Our
review is the same in a prosecution primarily resting upon
circumstantial evidence. (People v. Rivera (2019) 7 Cal.5th 306,
331.) We do not redetermine the weight of the evidence or the
credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47,
60; People v. Young (2005) 34 Cal.4th 1149, 1181 [“Resolution of
conflicts and inconsistencies in the testimony is the exclusive
province of the trier of fact”].) We must accept logical inferences
that the trier of fact might have drawn from the evidence
although we may have concluded otherwise. (Rivera, at p. 331.)
“If the circumstances reasonably justify the trier of fact’s
findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled
with a contrary finding.” (Albillar, at p. 60.)
13
The crime of rape of an intoxicated person proscribes sexual
intercourse with a person who is not capable of giving legal
consent due to intoxication. (§ 261, subd. (a)(3); People v. Sta Ana
(2021) 73 Cal.App.5th 44, 60-61; People v. Giardino (2000) 82
Cal.App.4th 454, 462.) Lack of actual consent is not a required
element of the crime: “[T]he issue is not whether the victim
actually consented to sexual intercourse, but whether he or she
was capable of exercising the degree of judgment a person must
have in order to give legally cognizable consent.” (Giardino, at
p. 462.) It is not necessary that the victim be so intoxicated that
he or she is physically incapable of speaking or otherwise
“manifesting a refusal to give actual consent.” (Id. at p. 464.)
Sufficient evidence and reasonable inferences therefrom
support the jury’s finding that C.D. was incapable of resisting or
exercising the judgment necessary to consent to intercourse due
to intoxication. C.D. testified that she had been drinking alcohol
the evening of the crime, and she informed Brasuell before the
sexual encounter that she was intoxicated. C.D. testified that she
could not walk, talk, or hold herself upright. Brasuell filmed
their encounter, and when C.D. later viewed it, she realized that
she “wasn’t completely there.” C.D. was uncomfortable viewing
the videotape and asked Brasuell to delete it (he refused). C.D.
also testified that she was “in and out” of consciousness during
and after the intercourse with Brasuell. Brasuell’s assertion of
insufficient evidence to support the conviction of count 7 is
without merit.
Sentencing Arguments
VI.
Brasuell argues that the recent enactment of Senate Bill
No. 567 (Stats. 2021, ch. 731, § 1.3) requires a remand for
14
resentencing pursuant to section 1170, subdivision (b), as
amended. The Attorney General concedes that the recent
amendment applies retroactively to Brasuell, but contends that
any error is harmless beyond a reasonable doubt. (In re Estrada
(1965) 63 Cal.2d 740, 745 [amendments to statutes that reduce
punishment for crime apply to all defendants whose judgments
are not yet final]; People v. Salazar (2022) 80 Cal.App.5th 453,
462 [following Estrada].)
The trial court imposed upper term sentences for count 1
(nine years - encouraging a minor to use a controlled substance);
count 7 (eight years - rape by use of drugs); count 8 (eight years -
forcible oral copulation); and count 10 (nine years - assault with
intent to commit a sex offense). The court found no factors in
mitigation of sentence and numerous factors in aggravation,
including the factor of multiple victims who were particularly
vulnerable.
In imposing the upper term, the trial court relied upon the
following aggravating factors: 1) the crimes involved great
violence, bodily harm, and threat of great bodily harm; 2) the
multiple victims were particularly vulnerable; 3) the manner of
commission of the crimes indicated planning, sophistication, and
professionalism; 4) defendant possessed a large amount of
contraband; and 5) defendant took advantage of a position of
trust or confidence. (Cal. Rules of Court, rule 4.421(a).)
Senate Bill No. 567, which became effective January 1,
2022, amended section 1170 by making the middle sentencing
term the presumptive sentence unless certain circumstances
exist. (Adding § 1170, subd. (b)(1), (2), (3).) Pursuant to the
amendment, the trial court may impose an upper term sentence
only where there are circumstances in aggravation and the facts
15
underlying those circumstances have been stipulated by the
defendant or found true beyond a reasonable doubt by the fact-
finder. The court may also rely upon certified records of the
defendant’s prior convictions.
Any fact-finding error here is harmless beyond a reasonable
doubt because the jury “unquestionably would have found true”
(and did find) at least one aggravating circumstance beyond a
reasonable doubt. (People v. Sandoval (2007) 41 Cal.4th 825,
839.) A single aggravating factor is sufficient to support an upper
term. (People v. Osband (1996) 13 Cal.4th 622, 728; People v.
Flores (2022) 75 Cal.App.5th 495, 500-501.)
Remand for resentencing is unnecessary. (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391 [remand for resentencing
unnecessary where record “ ‘clearly indicate[s]’ ” trial court would
have reached same conclusion even if it were aware of its
discretion]; People v. Salazar, supra, 80 Cal.App.5th 453, 462-
463.) Here the jury convicted Brasuell of crimes against four
minor victims and the court cited Brasuell’s multiple vulnerable
victims as one factor in aggravation. The court also relied upon
the great quantity of contraband recovered at the Brasuell home.
In addition, the court chose to impose consecutive, not concurrent
sentences throughout sentencing, indicating the court’s
reluctance to impose lesser terms. (Salazar, at p. 463.) Remand
for resentencing is unnecessary and would be an idle act.
VII.
Brasuell asserts that Assembly Bill No. 518 requires that
his case be remanded for resentencing to permit the court to
exercise its discretion to stay his conviction on count 2 rather
than count 3, and count 10 rather than count 11, pursuant to
section 654. The Attorney General concedes that the recent
16
amendments to section 654 apply to Brasuell, but that remand is
not required because the trial court clearly indicated its intent to
impose an aggravated sentence. We agree.
Assembly Bill No. 518 amends section 654 by removing the
requirement that a defendant shall be punished under the
provision providing for the longest term of imprisonment. (Stats.
2021, ch. 441, § 1.) It grants the trial court discretion to impose
punishment under any of the applicable provisions. (People v.
Mendoza (2022) 74 Cal.App.5th 843, 862 [pursuant to Assembly
Bill No. 518, trial court has discretion to select which offense is
punishable].) Brasuell is entitled to the benefit of Assembly Bill
No. 518, permitting the court to exercise its sentencing discretion
pursuant to section 654. (In re Estrada, supra, 63 Cal.2d 740,
745; People v. Sek (2022) 74 Cal.App.5th 657, 666-667.)
A trial court must exercise its informed discretion when
sentencing a defendant. (People v. Gutierrez, supra, 58 Cal.4th
1354, 1391.) If the court proceeds on the assumption that it lacks
discretion, remand for resentencing is required unless the record
“ ‘clearly indicates’ ” that the court would have reached the same
conclusion had it been aware of its discretionary powers. (Ibid.)
Here there was no possibility that the trial court would
have exercised discretion to stay Brasuell’s sentence on counts 2
and 10 in favor of imposing a lesser sentence on counts 3 and 11.
The court found no factors in mitigation and at least six factors in
aggravation. In sentencing, the trial judge stated: “The lengthy
prison sentence that you are going to receive today . . . one of the
good things [is] that it does . . . protect us from people like
you. . . . You attempted to abuse anyone who would testify
against you. Continuous violation of court orders. Continuous
violations of the law. You submitted documents to this court that
17
were false. You made accusations against people that were false.
You have never voluntarily acknowledged wrongdoing. . . .
Again, throughout this process you made repeated
misrepresentations to the Court and perjured yourself in certain
documents.” This record clearly indicates that the court would
have selected the same counts to stay pursuant to section 654 if it
had been aware it had the discretion to choose otherwise.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.*
*Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
18
Matthew G. Guerrero, Judge
Superior Court County of San Luis Obispo
______________________________
Mark R. Feeser, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and David A. Wildman,
Deputy Attorneys General, for Plaintiff and Respondent.
19