People v. McDowell CA4/3 ( 2020 )

Filed 12/21/20 P. v. McDowell CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058262
v. (Super. Ct. No. 18CF0916)
WESLEY MCDOWELL, JR., OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Maria D.
Hernandez, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
Mark D. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney
General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and
Respondent.
* * *
A jury convicted defendant Wesley McDowell, Jr., of one count of human
trafficking of a minor (Pen. Code, § 236.1, subd. (c); count 1),1 one count of pimping a
minor (§ 266h, subd. (b)(1); count 2), one count of pandering a minor (§ 266i, subds.
(a)(1), (b)(1); count 3), one count of forcible rape (§ 261, subd. (a)(2); count 4), and one
count of dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 6).2 The
jury also found true allegations that defendant used force or fear to commit count 1
(§ 236.1, subd. (c)(2)), defendant was armed with a firearm in the commission of counts
1, 2, and 3 (§ 12022, subd. (a)(1)), and that count 4 was committed against a victim who
was a minor over 14 years old (§ 264, subd. (c)(2)). But the jury found not true
allegations that defendant personally used a firearm in the commission of counts 1, 2, and
3 (§ 12022.5, subd. (a)).
The court sentenced defendant to an indeterminate term of 16 years to life
plus nine years in state prison as follows: (1) 15 years to life on count 1, plus a
consecutive one-year term for the firearm enhancement (§ 12022, subd. (a)(1)); (2) a
consecutive term of nine years on count 4; and (3) a concurrent term of three years on
count 6. The court also stayed sentences on counts 2 and 3 pursuant to section 654.
Defendant raises three issues on appeal. First, he contends the prosecutor
committed misconduct during his closing argument. Second, he claims his defense
counsel rendered ineffective assistance of counsel by failing to object to the prosecutor’s
closing argument. Third, he argues there was insufficient evidence to support his
conviction on count 6 for dissuading a witness.
1
All further statutory references are to the Penal Code.
2
The court granted defendant’s motion to dismiss a second count of forcible
rape (count 5). To avoid any confusion, we refer to the counts as they were alleged and
numbered in the information.
2
We disagree with defendant’s contentions. He forfeited his claims
regarding prosecutorial misconduct. But even if he had preserved the claims, the
prosecutor’s statements during closing argument either did not constitute misconduct or
were not prejudicial. We accordingly reject defendant’s ineffective assistance of counsel
claim. Contrary to defendant’s assertion, there also was substantial evidence from which
the jury could infer defendant dissuaded the victim from reporting his criminal activity to
the police. Finally, although the parties do not raise this issue on appeal, the court erred
by staying counts 2 and 3 pursuant to section 654 without imposing a sentence. We
accordingly remand for the court to impose sentences on those counts before staying
execution of those sentences.
FACTS
In April 2018, the police stopped defendant’s car as he pulled into a motel
parking lot on Harbor Boulevard. M.J. was sitting in the front passenger seat, and
defendant told the officer that she was his daughter. The officer spoke to M.J. outside of
the car and noticed defendant stared at her the entire time. The officer believed M.J. was
scared of defendant. M.J. told the officer that defendant was her uncle. After searching
defendant’s car and the motel room he shared with M.J., officers found a loaded gun on
the front seat, a box of condoms in the trunk, and lingerie in the motel room.
Investigator Strunk, a deputy sheriff at the Orange County Human
Trafficking Task Force, responded to the scene and spoke with M.J. over the course of
several days. M.J., who was 17 years old, told Strunk that she worked as a prostitute for
defendant. He had her work in Orange County, Los Angeles County, San Bernardino,
and Las Vegas. According to M.J., defendant set the prices she charged, and she had to
give the money she earned to him. To make sure she did not withhold any money, he
would take her clothes off and physically search her. M.J. also told Strunk that defendant
3
slapped her “every time like [she] would say something stupid.” On one occasion, he
punched, kicked, and repeatedly hit her because he accused her of being gone too long
with no money to show for it. Despite this treatment, M.J. told Strunk that she
considered defendant to be her boyfriend.
Strunk further testified that M.J. admitted defendant had raped her. During
one of Strunk’s interviews with M.J., on April 5, 2018, she was joined by District
Attorney Investigator McLean and Deputy District Attorney Schoenleben. M.J. told the
interviewers it happened “a few times . . . whenever [she] didn’t bring back enough
money, that’s when he would do it.” She further explained: “[M]ost of the time, I didn’t
most of the time I told him I didn’t wanna have sex, all the time I told him I didn’t wanna
have sex but sometimes when um, I would bring back money he would be like
understanding then, then I guess we’ll like talk about it and then we end up having sex
but then I know when he, when I didn’t bring back money he would get mad and he’ll be
so mad he’ll just hold me down and he’ll rip my clothes off of me, he’ll pull my pants
down, he’ll be like and shove it inside of me and that’s how it was, pretty much whenever
I didn’t bring back . . . enough money.” One of the interviewers asked: “[W]hen that
happened when he was doing that and he’s mad, did you tell him no and it still
happened?” M.J. replied: “[S]ometimes I would let it happen[ ] and, but I, while I was
saying that I wouldn’t, I’ll tell him no like I didn’t want to, I tr[ied] to put my clothes
back on and yea.”
At trial, M.J. denied defendant had forced her to have sex. She also
claimed she never told the police that defendant forced her to have sex when she did not
make money or that he ripped her clothes. M.J.’s mother testified M.J. said she had
received threats from other inmates in jail, believed the threats were from defendant, and
was going to lie on the stand because she was afraid.
4
M.J. also testified about how she became a prostitute. Before she met
defendant, she had moved in with a friend who introduced her to prostitution. M.J. met
defendant at the friend’s apartment. Soon after, defendant drove M.J. to Las Vegas
where he had her work as a prostitute.
DISCUSSION
Defendant contends certain comments by the prosecutor in his closing
argument amounted to misconduct and requires reversal of the forcible rape and
dissuading a witness counts. To the extent his counsel failed to object to the prosecutor’s
closing argument, he claims his counsel rendered ineffective assistance of counsel.
Finally, he argues his conviction for dissuading a witness was not supported by
substantial evidence. For the reasons below, we disagree with defendant’s contentions
and affirm the judgment.
Alleged prosecutorial misconduct
Defendant asserts the prosecutor committed misconduct during closing
argument in several ways. First, defendant contends the prosecutor improperly suggested
there were reasons outside the record for why law enforcement did not do a Sexual
Assault Response Team (SART) exam or DNA test to corroborate M.J.’s claim that
defendant raped her. By doing so, defendant argues the prosecutor testified to facts not in
evidence and acted as an unsworn witness who was not subject to cross-examination.
Second, he claims the prosecutor improperly told the jurors they should convict
defendant of dissuading a witness because he told M.J., “I will kill you if you speak to the
police,” but defendant argues there was no evidence he said this. Defendant accordingly
contends we should reverse his convictions for forcible rape and dissuading a witness by
5
force or threat.3 But defendant forfeited these arguments on appeal because his counsel
did not object to any of the instances of alleged error or request an admonition. But
assuming no forfeiture, the prosecutor’s comments either did not constitute misconduct or
were not prejudicial.
A. Relevant Background and the Prosecutor’s Closing Argument
During closing argument, defendant’s counsel argued no evidence
corroborated M.J.’s testimony that defendant raped her. He claimed the failure to
conduct a SART exam was “a huge red flag,” indicating that Strunk did not conduct a
complete investigation or did not believe M.J. when she said defendant raped her. He
also noted: “There is no DNA collected. There’s no torn clothing.” “There’s no injuries.
And, of course when she came in here to court, she denied it on the witness stand.”
In rebuttal, the prosecutor argued: “The rape. Let’s talk about the rape
quick. The rape. I don’t have a text message saying, ‘Hey, sorry, I raped you, by the
way.’ I don’t. You can’t hold it against [M.J.] or this case necessarily that you can’t just
say, well, you didn’t do a SART exam, you didn’t do DNA. There may be reasons for
that. We’ll talk about it after trial but right now you just get to look in these four walls
and so you’ve got to look at what she says about the rape.” (Italics added.) The
prosecutor then argued M.J.’s rape claims were credible because she would have said
defendant raped her every time they had sex if she was lying. Instead, the prosecutor
noted M.J. said they sometimes had consensual sex while other times they did not.
With respect to the dissuading a witness count, the prosecutor argued: “I
submit to you that saying, ‘I will kill you if you speak to the police,’ is dissuading a
3
Defendant cites additional examples of alleged prosecutorial misconduct so
we “understand the severity of the misconduct,” but he does not argue those purported
errors require reversal of his convictions. We accordingly do not summarize or address
those additional examples.
6
witness to report as a victim of the crime. [M.J.] was actually a witness or a crime
victim, so check. And the defendant knew he was trying to do that. [¶] You only say,
‘I’ll kill you if you talk to the police,’ if you intended for them to be afraid and not talk to
the police, all right. So, check. It is not a defense the fact that she actually showed up or
the fact that she actually laid him out to the police. That’s not a defense. I don’t need to
show it, I just need to show that he tried to do it, he tried to discourage her from
cooperating with law enforcement.” (Italics added.)
B. The Claim Was Not Preserved for Appellate Review
“To preserve a claim of prosecutorial misconduct for appeal, a criminal
defendant must make a timely and specific objection and ask the trial court to admonish
the jury to disregard the impropriety. [Citations.] A defendant will be excused from the
requirement of making a timely objection and/or a request for admonition if either would
have been futile. [Citation.] In addition, the failure to request that the jury be
admonished does not forfeit the issue for appeal if an admonition would not have cured
the harm caused by the misconduct or the trial court immediately overrules an objection
to alleged misconduct such that the defendant has no opportunity to make such a
request.” (People v. Cole (2004) 33 Cal.4th 1158, 1201.) “A defendant claiming that one
of these exceptions applies must find support for his or her claim in the record.” (People
v. Panah (2005) 35 Cal.4th 395, 462.)
Here, defendant acknowledges he did not object to any of the instances of
alleged error or request an admonition. But he claims he did not forfeit any arguments on
appeal because an admonition would not have cured the harm caused by the prosecutor’s
misconduct. According to defendant, the “bell could not be unrung” after the prosecutor
had stated “there was a reason there was no scientific evidence to support the forcible
rape charge . . . .” We find nothing in the record suggesting the harm, if any, caused by
the alleged misconduct could not have been cured. As the People correctly note, the
7
court could have admonished the jury to only consider the evidence before it or that an
attorney’s statements are not evidence.
Relying on People v. Lambert (1975) 52 Cal.App.3d 905, defendant
alternatively argues he did not forfeit any arguments because his guilt on the rape and
dissuading a witness charges was “closely balanced” and the prosecutor’s misconduct
“contributed materially to the guilty verdicts . . . .” But this exception to the forfeiture
rule articulated in Lambert has long been overruled. (People v. Green (1980) 27 Cal.3d
1, 28-34, overruled on other grounds as explained in People v. Morgan (2007) 42 Cal.4th
593, 607.) For the reasons discussed ante, defendant forfeited any alleged prosecutorial
error.
Defendant alternatively argues his defense counsel rendered ineffective
assistance of counsel to the extent an objection to the prosecutor’s closing argument was
required. The benchmark for evaluating a claim of ineffective assistance is “whether
counsel’s conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.” (Strickland v. Washington
(1984) 466 U.S. 668, 686.) A defendant alleging ineffective assistance of counsel must
meet a two-pronged test: (1) defendant must show counsel’s performance was deficient;
and (2) defendant must show he was prejudiced by the deficient performance. (Id. at p.
687.)
Here, we need not decide whether counsel’s performance was deficient
because defendant either has not suffered prejudice or there was no misconduct as
discussed below. (People v. Camino (2010) 188 Cal.App.4th 1359, 1377 [court need not
address both components of ineffective assistance inquiry if defendant makes insufficient
showing on one]; Strickland v. Washington, supra, 466 U.S. at p. 691 [“An error by
counsel, even if professionally unreasonable, does not warrant setting aside the judgment
of a criminal proceeding if the error had no effect on the judgment”].)
8
C. The Prosecutor’s Comments Were Either Harmless or Did Not
Constitute Misconduct
Assuming no forfeiture, defendant has not suffered prejudice with respect
to one of the prosecutor’s comments. With respect to the prosecutor’s other complained-
of statement, there was no misconduct. “‘A prosecutor’s misconduct violates the
Fourteenth Amendment to the United States Constitution when it “infects the trial with
such unfairness as to make the conviction a denial of due process.” [Citations.] In other
words, the misconduct must be “of sufficient significance to result in the denial of the
defendant’s right to a fair trial.” [Citation.] A prosecutor’s misconduct that does not
render a trial fundamentally unfair nevertheless violates California law if it involves “the
use of deceptive or reprehensible methods to attempt to persuade either the court or the
jury.”’” (People v. Clark (2011) 52 Cal.4th 856, 960.) “A defendant’s conviction will
not be reversed for prosecutorial misconduct, however, unless it is reasonably probable
that a result more favorable to the defendant would have been reached without the
misconduct.” (People v. Crew (2003) 31 Cal.4th 822, 839.)
It is improper for a prosecutor to “suggest the existence of ‘“facts’” outside
of the record by arguing matters not in evidence.” (People v. Woods (2006) 146
Cal.App.4th 106, 113.) However, “[a] prosecutor may fairly comment on and argue any
reasonable inferences from the evidence.” (Id. at p. 112.) “When attacking the
prosecutor’s remarks to the jury, the defendant must show that, ‘[i]n the context of the
whole argument and the instructions’ [citation], there was ‘a reasonable likelihood the
jury understood or applied the complained-of comments in an improper or erroneous
manner. [Citations.] In conducting this inquiry, we “do not lightly infer” that the jury
drew the most damaging rather than the least damaging meaning from the prosecutor’s
statements.’” (People v. Centeno (2014) 60 Cal.4th 659, 667.)
9
Here, defendant complains about the prosecutor’s comments during closing
argument that “[t]here may be reasons for” the absence of DNA evidence or a SART
exam and that “[w]e’ll talk about it after trial . . . .” By doing so, he contends the
prosecutor argued matters not in evidence. He also claims “[t]he prosecutor eviscerated
[defendant’s] entire argument [that M.J.’s testimony about the rape was not corroborated]
by telling the jurors he would explain after the trial why [there] was no such evidence.”
The People do not contest the prosecutor’s statements were improper. Instead, the People
argue there was no reasonable likelihood the jury applied the statements in an improper
way. We agree reversal is unnecessary but for a different reason.
The evidence in the instant case was not close enough for us to conclude
there was a reasonable probability that defendant would have achieved a better result
absent the complained-of remarks. Strunk testified she did not conduct a SART exam
because M.J. “told [her] she had had sex multiple times with [defendant and] with a
bunch of people” so she “didn’t see that it was relevant.” Strunk also testified M.J. told
her several times that defendant had raped her. She explained M.J. admitted she had
consensual sex with defendant on some occasions and nonconsensual sex on other
occasions. For example, M.J. told Strunk that defendant had ripped and torn her
underwear off on one occasion. Although M.J. testified inconsistently at trial and denied
being raped by defendant, there was evidence she lied because she was afraid of
defendant. Her mother testified M.J. told her that she had received threats from other
inmates in jail and believed the threats were coming from defendant. Because of those
threats, she told her mother she was afraid to testify against defendant and was going to
lie. Under these circumstances, the evidence supporting defendant’s guilt was strong,
and we cannot conclude there is a reasonable probability that the prosecutor’s error
affected the outcome.
10
In any case, any error was harmless. The court’s instructions clearly
informed the jurors that it was up to them to decide the facts in the case based on the
evidence presented (CALCRIM No. 200) and not the arguments of counsel (CALCRIM
No. 222). We must presume the jury followed the court’s instructions. (People v.
Osband (1996) 13 Cal.4th 622, 714-715.) “We must also assume that the jurors are
intelligent persons and capable of understanding and correlating all jury instructions
which are given.” (People v. Kegler (1987) 197 Cal.App.3d 72, 80.) The court’s
instructions accordingly cured any prosecutorial misconduct.
Defendant relies on People v. Bolton (1979) 23 Cal.3d 208, but that case
does not help him. In Bolton, our Supreme Court concluded the prosecutor’s improper
statement during closing argument was harmless because any reasonable jury would have
reached the same verdict in the absence of the comment. (Id. at pp. 214-215.) The other
cases defendant cites are factually distinguishable because they do not involve statements
comparable to the one made by the prosecutor in the instant case. In People v. Kirkes
(1952) 39 Cal.2d 719, the prosecutor stated he had personal knowledge of the defendant’s
guilt and implied he would not have prosecuted the case if he did not believe in the
defendant’s guilt. (Id. at p. 724.) Our Supreme Court held these statements compounded
the error of the prosecutor’s other comments that were not based on legitimate inferences
drawn from the evidence. (Id. at pp. 722-724.) In People v. Hall (2000) 82 Cal.App.4th
813, the prosecutor in effect told the jury what an uncalled witness’s testimony would
have been by saying he would have testified exactly like another witness. (Id. at p. 817.)
Finally, in Berger v. U.S. (1935) 295 U.S. 78, the court stated the prosecutor “was guilty
of misstating the facts in his cross-examination of witnesses; of putting into the mouths of
such witnesses things which they had not said; of suggesting by his questions that
statements had been made to him personally out of court, in respect of which no proof
was offered; of pretending to understand that a witness had said something which he had
not said and persistently cross-examining the witness upon that basis; of assuming
11
prejudicial facts not in evidence; of bullying and arguing with witnesses; and, in general,
of conducting himself in a thoroughly indecorous and improper manner.” (Id. at p. 84.)
None of these cases involve statements similar to the one made by the prosecutor here.
The next complained-of statement occurred during the prosecutor’s
argument that defendant told M.J. he would kill her if she talked to the police. When
discussing the dissuading a witness count, the prosecutor argued: “I submit to you that
saying, ‘I will kill you if you speak to the police,’ is dissuading a witness to report as a
victim of the crime.” Defendant contends there was no evidence he said this. Instead, he
claims he “threatened to kill her if she was ‘ever to get pulled over’” by the police.
According to defendant, “proof that [he] threatened her if she got pulled over has no
tendency to prove he threatened to kill her if she reported crimes committed by [him].”
In other words, he argues “telling [M.J.] to avoid arrest is not the same thing as telling her
not to report criminal conduct to the police.”
M.J. described defendant’s specific threat when talking to Strunk. She told
Strunk that defendant warned her “if [she] was ever to get pulled over, that [the police]
were gonna take [her] to jail for a really long time, and him too, and that if he ever went
to jail, and, when he would get out, that he would kill me.” She further explained: “Yeah
every time I’d go out, he like, ‘you better not get caught. Every, every time you see a cop
car, you better hide or run somewhere.’”
From this evidence, an inference could reasonably be drawn that defendant
told M.J. he would kill her if she spoke to the police. By threatening to kill her if she was
ever pulled over by the police and caused him to go to jail, defendant essentially
threatened her to not talk to the police. In fact, he warned her to hide or run away if she
ever saw the police. In other words, he did not want her to talk to the police. While M.J.
recanted her statements at trial, this alone does not negate a reasonable inference that
defendant threatened her if she reported their criminal conduct to the police. Instead, it
12
suggests M.J. was afraid of defendant after receiving threats in jail and did not want to
testify against him.
Defendant relies on People v. Fletcher (1996) 13 Cal.4th 451 and People v.
Shipe (1975) 49 Cal.App.3d 343, but those cases are inapposite. Neither case addressed
whether the prosecutor improperly suggested facts outside the record during closing
argument. In Fletcher, our Supreme Court held a redacted statement “will be deemed
insufficient to avoid a confrontation violation if, despite the editing, reasonable jurors
could not avoid drawing the inference that the defendant was the coparticipant designated
in the confession by symbol or neutral pronoun.” (Fletcher, at p. 456.) The court found
the error was compounded in that case by the conduct of the prosecutor who “urged the
jury to consider [one defendant’s] extrajudicial statement in determining not only his
guilt but [the codefendant’s] as well.” (Id. at p. 471.) In Shipe, the court held a
prosecutor cannot, “under the guise of cross-examination, get before the jury what is
tantamount to devastating direct testimony.” (Shipe, at p. 349.) In that case, “the error
was in the manner in which the witnesses were questioned” with “flagrantly suggestive
questions.” (Id. at p. 351.)
Defendant further argues “there is no evidence in the record that [M.J.]
wanted to report [defendant] to the police.” But “[a] threat need not actually deter or
reach the witness because the offense is committed when the defendant makes the
attempt to dissuade the witness.” (People v. Foster (2007) 155 Cal.App.4th 331, 335.)
For all the reasons discussed ante, the prosecutor’s comments do not warrant reversal.
Substantial evidence supporting defendant’s conviction for dissuading a witness
Finally, defendant contends there is insufficient evidence to support his
conviction on count 6 for dissuading a witness because “[t]here is no evidence [he] told
[M.J.] he would kill her if she spoke to the police.” He accordingly claims his due
13
process rights were violated. We disagree. There is substantial evidence in the record
supporting defendant’s conviction.
“In addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence —
evidence that is reasonable, credible and of solid value — such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate
court presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
“[I]t is the exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination depends.
[Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for
substantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 403.)
“Section 136.1 prohibits, in part, any attempt to prevent or dissuade a
[victim or] witness to a crime from making a report of it to a police officer.” (People v.
Pettie (2017) 16 Cal.App.5th 23, 54; § 136.1, subd. (b)(1).) “Subdivision (c)(1)
of section 136.1 punishes any person who knowingly and maliciously commits this
offense by force or by an express or implied threat of force or violence.” (Ibid.)
“The circumstances in which the defendant’s statement is made, not just the
statement itself must be considered to determine whether the statement constitutes an
attempt to dissuade a witness . . . .” (People v. Wahidi (2013) 222 Cal.App.4th 802, 806.)
“If the defendant’s actions or statements are ambiguous, but reasonably may be
interpreted as intending to achieve the future consequence of dissuading the witness . . . ,
the offense has been committed.” (Ibid.)
14
Here, the record includes sufficient evidence from which the jury could
reasonably infer defendant dissuaded M.J. from reporting defendant’s criminal activity to
the police. Regardless of the prosecutor’s statements during closing argument, defendant
threatened M.J. that he would kill her if she was pulled over by the police and he went to
jail. He also warned her to hide or run if she ever saw the police and made this threat
every time she went out. The circumstances in which defendant made these statements
further suggest the statements were made to dissuade M.J. from reporting their
prostitution activities to the police. During the time when defendant worked M.J. as a
prostitute, he punched, kicked, and choked her. When they were pulled over by the
police, defendant stared at M.J. the entire time she talked to the officer who testified that
M.J. appeared to be scared of defendant. M.J.’s mother also testified that M.J. was afraid
of defendant and attributed threats against her by inmates to defendant. Given all of this
evidence, the jury could reasonably conclude defendant dissuaded M.J. from reporting his
criminal activity to the police.
Resentencing on counts 2 and 3
Although neither party raises the issue, we note the court erred by failing to
designate the sentences stayed under section 654 for count 2 (pimping a minor) and count
3 (pandering a minor). This must be corrected upon remand. “[W]hen a trial court
determines that section 654 applies to a particular count, the trial court must impose
sentence on that count and then stay execution of that sentence.” (People v. Alford
(2010) 180 Cal.App.4th 1463, 1466.) Upon remand, the court must impose a sentence on
counts 2 and 3 before staying the sentences under section 654.
15
DISPOSITION
The sentence is reversed. On remand, the court shall impose a sentence on
counts 2 and 3 before staying execution of those sentences pursuant to section 654. In all
other respects, the judgment is affirmed.
IKOLA, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
THOMPSON, J.
16