People v. Wilcox CA3 ( 2021 )

Filed 3/2/21 P. v. Wilcox CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C089663
Plaintiff and Respondent, (Super. Ct. Nos. 17CF04579,
18CF04316)
v.
EARL BYRON WILCOX III,
Defendant and Appellant.
Appointed counsel for defendant Earl Byron Wilcox III filed an opening brief that
sets forth the facts of the case and asks this court to review the record and determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d
436.) After examining the record, we conclude the trial court erred in staying the
mandatory assessments on one of defendant’s convictions, and that errors in the abstract
of judgment related to the court operations and court facilities assessments must be
corrected. We shall modify the judgment accordingly and direct the clerk to prepare an
amended abstract of judgment correcting the identified errors. We find no other arguable
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error that would result in a disposition more favorable to defendant and affirm the
judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Butte County Case No. 17CF04579 (the assault case)
In September 2017 defendant was charged in Butte County case No. 17CF04579
with two counts of assault with a deadly weapon against D.C. and D.C.’s son,
respectively (Pen. Code, § 245, subd. (a)(1)),1 vandalism with over $400 in damage
(§ 594, subd. (a)), and misdemeanor exhibiting a deadly weapon (§ 417, subd. (a)(1)).
Defendant pleaded not guilty and was released on bail.
Butte County Case No. 18CF04316 (the domestic violence case)
In July 2018 defendant was charged in Butte County case No. 18CF04316 with
injuring V.C., a spouse or cohabitant (§ 273.5, subd. (a)) while released on bail in the
assault case (§ 12022.1), and with exhibiting a deadly weapon (§ 471, subd. (a)(1)). The
court granted a criminal protective order pursuant to section 136.2 protecting V.C. from
any contact with defendant. Defendant pleaded not guilty. He was released on his own
recognizance.
Motion to Consolidate
In September 2018 the prosecutor moved to consolidate the assault case and the
domestic violence case, as well as a third case, Butte County case No. 18CM04920 (the
battery case). The court granted the motion, and the prosecutor filed a consolidated
information in December 2018.
The consolidated information alleged that on July 10, 2017, defendant assaulted
D.C. with a deadly weapon, a metal bar (§ 245, subd. (a)(1), count 1), assaulted D.C.’s
son with a deadly weapon, a metal bar (§ 245, subd. (a)(1), count 2), vandalized another’s
1 Further undesignated statutory references are to the Penal Code.
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property causing over $400 in damage (§ 594, subd. (a), count 3), and exhibited a deadly
weapon (§ 417, subd. (a)(1), count 4). It further alleged that on July 21, 2018, defendant
injured V.C., a spouse or cohabitant (§ 273.5, subd. (a), count 5), while released on bail
or own recognizance (§ 12022.1), and that he exhibited a deadly weapon (§ 417, subd.
(a)(1), count 6). Finally, the consolidated information alleged that on August 12, 2018,
defendant committed battery against V.C. (§ 243, subd. (e)(1), count 7), and disobeyed a
domestic relations court order (§ 273.6, subd. (a), count 8).
The consolidated cases were tried to a jury, and the following evidence was
adduced at trial.
First Jury Trial
In 2017 defendant and V.C. were involved in a romantic relationship. V.C. was
the former wife of D.C. Although D.C. had initially tried to help defendant by giving
him work, there was animosity between the men after V.C. began dating defendant even
though she had rekindled her relationship with D.C.
On July 10, 2017, D.C. was inside his home with his children when he heard
something strike the door and then heard glass breaking. His minor daughter ran outside
and D.C. followed. She saw defendant breaking the windows of their car. D.C. saw
defendant running down the driveway away from his car holding a “breaker bar,” which
is used to loosen lug nuts and bolts. The car had been dented along the side, and the rear
window and taillights were broken, resulting in over $400 worth of damage.
D.C.’s daughter chased after defendant, and defendant turned around and swung
the metal bar at her. D.C. caught up to defendant and tried to stop him until law
enforcement arrived. Defendant swung the bar at D.C., hitting him several times. D.C.’s
son ran up and also got involved in the melee; he testified someone swung something at
him during the confrontation and that he ended up with a bloody nose.
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When officers arrived, they found defendant near the roadway holding the breaker
bar. He was handcuffed and detained. Officers recovered the metal bar, which was
admitted at trial.
V.C. testified that sometime in July 2018 she and defendant got into an argument.
Her son arrived at the house with his girlfriend and found her crying on her stairs; her
shoulder was injured, and she said defendant had hit her. Her son confronted defendant,
and defendant admitted he had hit V.C. When V.C.’s son told defendant he needed to
leave the house, defendant refused and pulled out a knife. They engaged in a physical
fight. V.C. got involved in the fight as well. Deputies responded to the scene and
arrested defendant. V.C. subsequently reported to the deputies that defendant had pushed
her down in the gravel.
V.C. also testified that on August 12, 2018, deputies responded to her home after
she and defendant got into a physical altercation when she started throwing his things out
of her car. She told the deputies that there was a restraining order in place, and that she
and defendant had gotten into a fight over personal property.2 She testified that she had
received a copy of a restraining order prohibiting defendant from contacting her, and that
she and defendant had probably discussed the restraining order.
The jury found defendant guilty of felony vandalism (count 3), exhibiting a deadly
weapon (counts 4 & 6), injuring a spouse or cohabitant (count 5), battery (count 7), and
disobeying a domestic relations order (count 8). The jury could not reach a verdict on
counts 1 and 2, and the court declared a mistrial as to those counts. The trial court
subsequently found true the on-bail enhancement attached to count five. On February 14,
2019, the trial court terminated the previously issued protective order.
2 The trial court took judicial notice of the restraining order and admitted it at trial.
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Butte County Case No. 19CF00031
Based on testimony during the first trial, the prosecutor charged defendant in Butte
County case No. 19CF00031 with a single count of assault with a deadly weapon against
D.C.’s daughter (§ 245, subd. (a)(1)). Defendant pleaded not guilty to the charge.
The prosecutor moved to consolidate the assault case involving D.C.’s daughter
with the assault case involving D.C. and D.C.’s son. The trial court granted the motion.
Second Jury Trial
In April 2019 defendant was tried again. D.C., his son, and his daughter all
provided similar testimony as during the first trial. They testified that they were inside
their home when defendant showed up and hit their house and car with a metal bar. D.C.
and his daughter chased defendant and he swung the metal bar at them. D.C. tackled
defendant as he tried to escape into a waiting car driven by V.C. D.C.’s son joined in the
ensuing struggle and defendant swung the metal bar at him; he ended up with a bloody
nose, but was not sure what caused his nose to bleed. During the altercation, defendant
hit D.C. several times with the metal bar.
The jury found defendant guilty of assaulting D.C. with a deadly weapon (count
1), but not guilty of the assault charges against D.C.’s son and daughter (counts 2 & 3).
Following the jury’s verdict, the court found defendant in violation of probation in
another matter (case No. SCR102436).
Judgment and Sentencing
On May 16, 2019, the trial court sentenced defendant to an aggregate term of
seven years eight months in prison. For the assault case (case No. 17CF04579), the court
imposed the upper term of four years for the assault with a deadly weapon offense against
D.C., a consecutive eight months (one-third the midterm) for the vandalism offense, and
six months in county jail for the exhibiting a weapon offense, which was stayed under
section 654. For the domestic violence case (case No. 18CF04316), the court imposed a
consecutive one-year term (one-third the midterm) for the corporal injury offense, plus
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two years for the on-bail enhancement and a concurrent six-month term for the
exhibiting a weapon offense. For the battery case (case No. 18CM04920), the court
imposed concurrent terms of one year for the battery and disobeying a domestic relations
order offense. The court terminated defendant’s probation as unsuccessful in case
No. SCR102436 and sentenced him to a concurrent one-year term.
For both the assault case and the domestic violence case, the trial court imposed a
$300 restitution fine (§ 1202.4), and a $300 parole revocation restitution fine (§ 1202.45),
which was suspended unless parole was revoked; the court imposed a $150 restitution
fine in the battery case, but did not impose a corresponding $150 parole revocation
restitution fine. The court ordered direct victim restitution to D.C. in the amount of
$5,049.60, and reserved jurisdiction on direct victim restitution to V.C.
The court imposed a $40 court operations assessment for each conviction
(§ 1465.8) and a $30 court facilities assessment for each conviction (Gov. Code,
§ 70373); the court stayed the mandatory assessments on count 4 (exhibiting a deadly
weapon). The court imposed a $39 theft fine for count 3 (vandalism) in the assault case
(§ 1202.5). The court found defendant had no ability to pay the domestic violence
program fee and it waived the presentence investigation report fee. The court lifted the
stay on the probation revocation restitution fine in case No. SCR102436 and ordered him
to pay the fines as previously ordered.
The court awarded defendant 268 actual days and 268 conduct days in the assault
case, and 20 actual days and 20 conduct days in the domestic violence case.
Defendant timely appealed both the assault case and the domestic violence case.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and requesting that this court review the record to
determine whether there are any arguable issues on appeal. (People v. Wende, supra,
25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30
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days of the date of filing of the opening brief. More than 30 days elapsed, and we
received no communication from defendant.
Having undertaken an examination of the entire record, we conclude the court
erred in imposing the mandatory assessments on count 4 in the assault case, and on the
parole revocation restitution fine in the battery case; we have also identified errors in the
abstract of judgment related to the court operations and court facilities assessments.
For the exhibiting a deadly weapon offense in the assault case, the court imposed
six months in county jail, but stayed the term under section 654. The trial court then
imposed a $40 court operations assessment (§ 1465.8) and a $30 court facilities
assessment (Gov. Code, § 70373) on that count, and stayed the assessments. This was
error.
“Our Supreme Court has held, ‘[S]ection 654 prohibits the use of a conviction for
any punitive purpose if the sentence on that conviction is stayed.’ ” (People v. Sharret
(2011) 191 Cal.App.4th 859, 865, citing People v. Pearson (1986) 42 Cal.3d 351, 361,
disapproved on other grounds in People v. Vidana (2016) 1 Cal.5th 632, 650-651.) But
the assessments mandated by section 1465.8 and Government Code section 70373 do not
constitute punishment. (People v. Alford (2007) 42 Cal.4th 749, 757 [§ 1465.8 not
punitive in nature]; People v. Fleury (2010) 182 Cal.App.4th 1486, 1492 [Gov. Code,
§ 70373 not intended as punishment].) The trial court, then, lacked the authority to stay
the mandatory assessments. (See e.g., People v. Woods (2010) 191 Cal.App.4th 269,
271-272.) We shall correct the judgment accordingly.
We shall also modify the judgment to impose a $150 parole revocation restitution
fine in the battery case. Section 1202.45 provides in relevant part: “In every case where
a person is convicted of a crime and his or her sentence includes a period of parole, the
court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of
Section 1202.4, assess an additional parole revocation restitution fine in the same amount
as that imposed pursuant to subdivision (b) of Section 1202.4.” (§ 1202.45, subd. (a).)
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Here, the trial court imposed a $150 restitution fine pursuant to section 1202.4, but failed
to impose an identical parole revocation restitution fine under section 1202.45.
We shall also order that the felony abstract of judgment be corrected to reflect that
for the three felonies of which defendant was convicted, the court imposed a $40 court
operations assessment for each offense (totaling $120) and a $30 court facilities
assessment for each offense (totaling $90). The abstract of judgment improperly reflects
a $160 court operations assessment and a $120 court facilities assessment.
DISPOSITION
Defendant’s convictions are affirmed. The judgment is modified to lift the stay on
the respective court operations and court facilities assessments on the exhibiting a deadly
weapon offense in case No. 17CF04579, and to impose a $150 parole revocation
restitution fine in case No. 18CM04920. As so modified, the judgment is affirmed. The
court shall prepare an amended abstract of judgment reflecting the proper fines, fees, and
assessments imposed, and forward a copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation.
/s/
RAYE, P. J.
We concur:
/s/
ROBIE, J.
/s/
MURRAY, J.
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