People v. Wallace CA1/4 ( 2024 )

Filed 5/29/24 P. v. Wallace CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A166181
v. (Alameda County
LEVESTER WALLACE, JR., Super. Ct. No. 19CR004871)
Defendant and Appellant.
A jury convicted defendant Levester Wallace, Jr. of corporal injury to a
relationship partner (Pen. Code,1 § 273.5, subd. (a)) and false imprisonment
by violence (§§ 236, 237, subd. (a)), both committed against his girlfriend T.S.
The trial court imposed the four-year upper term for the corporal injury
charge and imposed (but stayed under section 654) an eight-month term for
false imprisonment.
On appeal, Wallace contends (1) the prosecutor committed misconduct
during voir dire and during her rebuttal closing argument at trial; and (2) the
court erred by imposing the upper term on the corporal injury charge, in part
because it purportedly relied on aggravating factors that were not found true
by the jury. In connection with both arguments, Wallace asserts his trial
1 Undesignated statutory references are to the Penal Code.
1
counsel provided ineffective assistance by failing to make sufficient
objections.
We reject Wallace’s arguments. We conclude, however, that it is
necessary to modify the stayed sentence for count 2. We will affirm the
judgment as modified.
I. BACKGROUND
A. The Evidence Presented at Trial
In February 2019, T.S. lived on the third floor in an apartment complex
in Oakland. She lived with Wallace, whom she had been dating since May
2016. Wallace was six feet, two inches tall and weighed 360 pounds. T.S.
was five feet, six inches tall and weighed 170 pounds.
T.S. testified about incidents of domestic violence that occurred prior to
the February 2019 incident that was the basis of the charges in this case. In
August 2017, T.S. and Wallace were in a car, and Wallace punched T.S. in
the jaw. T.S.’s jaw “felt like it dislocated.” T.S. asked Wallace, “What are you
doing?” Wallace threatened to crash the car with both of them in it. T.S.’s
jaw hurt for a week. She did not report the incident.
In March of 2018, in a parking lot outside T.S.’s home, Wallace grabbed
T.S. by her hair and asked her where she had been. Wallace grabbed so
tightly that he pulled T.S.’s hair and a few braided extensions out. He let go,
but after they walked from the parking lot into the apartment, Wallace
grabbed T.S.’s hair again. She dropped to the floor and onto her back,
thinking he would let go, but he did not. Instead, he put his knee onto T.S.’s
chest, which caused her pain, and he kept it there for some time. T.S.
pleaded that “that was hurting” and that she “couldn’t breathe.” Wallace
eventually got up. T.S.’s chest hurt for a “week or two after the incident.”
2
On February 24, 2019, T.S. went to a parade celebrating African-
American culture and a concert, both in downtown Oakland. She went home
around 8:00 p.m. to change her clothes to go to a nightclub. Wallace was also
at the apartment, and it seemed to T.S. that he had had a lot to drink. T.S.
spent an hour at the apartment, then went out to the nightclub. She
consumed alcohol and marijuana during the daytime events and at the
nightclub.
T.S. returned to the apartment at around 2:00 a.m. on February 25,
2019. Wallace called T.S. a “bitch” and asked her where she had been. He
grabbed her hair and put his face close to hers. After he let go and walked
away, T.S. went to change into her pajamas.
While T.S. was changing her clothes, Wallace returned, said “Bitch,
where the fuck have you been,” and punched T.S. in the head. The force of
the punch pushed T.S. back up against the wall. As her back was against the
wall, Wallace approached, took “his hand and put it around [T.S.’s] throat
and start[ed] squeezing really hard.” T.S. dropped to the floor, and Wallace
put both of his hands around her neck. T.S. was on the floor, and Wallace’s
body weight was on her, so she could not move. Wallace straddled T.S.,
sitting on her torso, making it difficult for her to breathe.
T.S. wriggled out from under Wallace and ran into the living room.
Because she was not fully dressed, she did not leave the apartment. She
tried to “negotiate” with Wallace so that he would not hurt her anymore or
attack her again. Wallace asked T.S. for her cell phone, and she gave it to
him. As he was going through her phone, T.S. put on some clothing.
T.S. then tried to leave the apartment, but Wallace blocked the door.
T.S. felt like “it was life or death” for her. She pushed the screen out of a
window and told Wallace that if he came near her, she would jump. She
3
climbed out and hung dangling from the outside of the window, holding onto
the window ledge. Wallace walked toward the window. Seeing him
approach, T.S. let go of the ledge and fell three stories to the ground.
When T.S. hit the ground, she “crumple[d].” She could not run away as
she had initially planned. Both her heels had shattered. She started
screaming for help. Wallace came out and grabbed T.S. by her hair. T.S. told
him that she was hurt and could not move. Wallace then left.
T.S.’s neighbor Lynell Fields heard a “thump” and then heard T.S.
scream for help. Fields ran to her window. She saw Wallace holding T.S.’s
arm and pulling her down the hill. T.S. was crying and screaming, “ ‘He’s
trying to kill me. Help me. He’s trying to kill me. Help me.’ ” Fields ran
outside. She held T.S.’s hand and called 911.
Wallace’s punch to T.S.’s head left her with a “knot” on her head for a
week. T.S. had extensive injuries to her heels, which required surgery and
physical therapy.
T.S. was initially taken by ambulance to the emergency department at
Oakland’s Highland Hospital. Among her injuries, medical staff noted a
“three-by-three centimeter contusion,” or “bruise,” on T.S.’s head. They also
noted that she felt “tender at the sternum” when “pressing on the breast
bone.” The medical records showed that T.S. showed “no obvious trauma”
and “no pain” to her head, eyes, ears, nose, and throat, and no “jugular vein
distention.”
T.S. drank alcohol and smoked marijuana before the incident and felt
“normal” and “functional.” On cross-examination, she testified her first drink
of alcohol was around 2:00 p.m. to 3:00 p.m. She had three to four drinks in
total that day and three marijuana blunts. She testified she was not
impaired or “drunk” that day.
4
At the hospital, medical staff noted that T.S. was intoxicated and “could
not consent to service provisions due to intoxication.” The “E-T-O-H”
screening, or ethyl alcohol screening, was not completed because T.S. was
intoxicated. Her blood alcohol level for ethyl alcohol was at a “0.191.” A
neurological evaluation of T.S. at the hospital produced normal results,
including that T.S.’s speech was fluent and she answered questions
appropriately.
A defense expert, Dr. Michael Laufer, testified that a woman who was
five feet, six inches tall and weighed 170 pounds would need to have about 10
drinks to get to a blood alcohol level of 0.19. Dr. Laufer estimated that if a
person had a 0.19 blood alcohol level at around 4:30 a.m., but stopped
drinking alcohol before 2:00 a.m., the person’s blood alcohol level would likely
have been higher at the time of their last drink. When asked whether three
to four drinks could get someone to a 0.19 blood alcohol level, Dr. Laufer
stated, “it really depends on the pattern.”
Dr. Laufer described various effects of alcohol. Alcohol slows reaction
time and causes difficulty with perception, including leading to tunnel vision,
where people “lose the ability to see the other things around the one thing
that they’re focusing on.” Dr. Laufer testified that at a blood alcohol level of
around 0.20, a person would be “profoundly sleepy,” may fall asleep or fall
over, and may have difficulty walking, as well as problems perceiving
distances, time, and whether something is safe or unsafe.
Memory loss may occur at a 0.24 blood alcohol level, but “ ‘almost never
less than [0].24.’ ” Dr. Laufer had previously testified that “ ‘with alcohol
alone, in order to lose your memory, you have to get to the point [of]
unconsciousness.’ ”
5
B. Procedural Background: The Charges, Verdict, and Sentence
A second amended information filed on July 12, 2022, charged Wallace
with corporal injury to a relationship partner (§ 273.5, subd. (a); count 1) and
false imprisonment by violence (§ 236; count 2). As to each count, the
information alleged several circumstances in aggravation, including that the
crime involved great violence or great bodily harm (Cal. Rules of Court,2
rule 4.421(a)(1)); the victim was particularly vulnerable (rule 4.421(a)(3));
and Wallace took advantage of a position of trust (rule 4.421(a)(11)). The
information alleged Wallace had four prior convictions—for corporal injury to
a relationship partner (§ 273.5, subd. (a)), evading an officer with willful
disregard for safety (Veh. Code, § 2800.2, subd. (a)), possession of a firearm
by a felon (former § 12021, subd. (a)(1); now § 29800, subd. (a)(1)),3 and
possession for sale of cocaine base (Health & Saf. Code, § 11351.5).
On July 25, 2022, the jury found Wallace guilty of both charged
offenses: corporal injury under section 273.5, subdivision (a), and false
imprisonment by violence under section 236. The jury did not find, and was
not asked to find, the aggravating circumstances that were alleged in the
second amended information.
In a bifurcated court trial, the court found beyond a reasonable doubt
that Wallace suffered the four prior convictions alleged in the second
amended information.
2 Undesignated rule references are to the California Rules of Court.
3 “Former section 12021[, subdivision ](a)(1) was repealed operative
January 1, 2012, but its provisions were reenacted without substantive
change as section 29800, subdivision (a)(1).” (People v. Sanders (2012)
55 Cal.4th 731, 734, fn. 2.)
6
On September 8, 2022, the court sentenced Wallace to the upper term
of four years in prison for the count 1 conviction of corporal injury to a
relationship partner (§ 273.5, subd. (a)). The court imposed an eight-month
term for the false imprisonment charge in count 2, but stayed that term
under section 654. As we discuss further below, in selecting the upper term
for count 1, the court found Wallace’s prior convictions were numerous (see
rule 4.421(b)(2)) and stated it was imposing the upper term based on that
finding.
Wallace appealed.
II. DISCUSSION
A. Prosecutorial Misconduct
Wallace contends the prosecutor committed misconduct during her
rebuttal closing argument by referring to statements made in voir dire, by
misstating the law about how the jurors should assess T.S.’s credibility
(specifically as to whether they should consider her intoxication), and by
vouching for T.S.’s credibility. In addition, Wallace suggests (in a less
developed argument) that the prosecutor committed misconduct during voir
dire through questions she posed to prospective jurors. We conclude that
Wallace forfeited the claims of error and that there was no prejudicial
misconduct in any event.
1. Additional Background
a. Voir Dire
During voir dire, the prosecutor asked prospective jurors (partly
through hypothetical questions) whether a person’s consumption of alcohol or
marijuana would affect the jurors’ assessment of that person’s testimony or
character. For example, the prosecutor asked: “[L]et’s say a witness were to
testify that they consumed alcohol. Would that affect the way that you judge
7
their testimony? Would that affect the way you would judge their character?”
A prospective juror (referred to by the parties as Juror 1) responded: “I guess
it could affect the credibility of their testimony if they were impaired
somehow. It would depend on what they were testifying to, and how
intoxicated they might have been, and how much that might have impaired
their ability to accurately observe and remember what they were testifying
to. But not credibility other than that. Not sort of character.”
As to marijuana, a different prospective juror (referred to by the parties
as Juror 2) stated: “I don’t have any strong feelings about marijuana use or
alcohol use, but I think that if there was a person who—I think it depends on
the extent of use. If there’s someone who says they smoke marijuana, you
know, every single day, I would probably have a judgment about their
character. [¶] . . . [¶] I think a lot of people use marijuana recreationally,
occasionally. I think that I have—I would have a feeling of someone who gets
high every day. I would feel, you know—I think that reflects on their
character.”
Another prospective juror (a juror we will call Juror 3), when asked
whether a person’s marijuana use would impact her view of the person’s
character, stated it would. Asked to elaborate, Juror 3 stated: “Because I
personally do not do drugs. . . . And I don’t know why, but it would affect my
perception of that person. And if they told me they do drugs, then I would
personally—that would be a negative [effect] on my judgment of them doing
drugs. Because I think—view them—it’s a negative for me to see—to have to
be interacting with people at that level because I don’t know what their level
is. But, you know, I try to maintain sober and they go into drugs. I think
there’s something different and I don’t know anything about drugs myself.”
Juror 3 was excused.
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b. Closing Argument
In his closing argument, defense counsel argued T.S. was not a credible
witness, focusing in part on T.S.’s testimony that she was not impaired
despite her drinking and marijuana use on the day of the incident. Counsel
also argued the medical records did not show evidence of the strangulation
about which T.S. testified. Counsel then referred to voir dire, stating the
prosecution knew T.S. had “credibility issues” because “the district attorney
asked about alcohol and marijuana use during voir dire and whether that
would impact your assessment of [T.S.’s] character. You don’t do that for
someone who has three to four drinks over a 12-hour period. No one is
worried about impugning someone’s character who’s had three or four drinks
over a 12-hour period.” Defense counsel stated he was not attacking T.S.’s
character but was just arguing she was not a credible witness.
In her rebuttal closing argument, the prosecutor noted defense counsel
had discussed alcohol, “[a]nd then he said I don’t understand why [the
prosecutor] talked to you about alcohol during voir dire. Of course I did,
ladies and gentlemen. Of course I did. Studies show that jurors and people
automatically don’t believe victims when they learn that they’re under the
influence of alcohol or drugs—” Defense counsel stated he was objecting “to
this as improper evidence. This is not evidence.” The court overruled the
objection, stating, “This is argument of counsel. If I’ve already indicated to
the jurors that the argument of counsel is not evidence. This is counsel’s
interpretation of the case.”
The prosecutor continued: “And we all know this from reading things
in the newspaper, seeing things in the media. When people learn that a
victim is under the influence of alcohol, they’re no longer believed. We had a
juror who was, I think, seated in number 18 for a period of time who said
9
that. She said if she learned that someone was using marijuana, she would
automatically not be able to think that they were a good person or making
good decisions. I can’t remember exactly the word she used. She said she
had all these feelings about marijuana usage and she said that it would affect
her to the degree that she wouldn’t be able to be a good juror in this case.
[¶] [Wallace] is entitled to a fair trial, but so are the People. So is [T.S.]. A
jury, of fair and impartial people. And each of you promised me at the
beginning of this case that you would not hold it against [T.S.] the fact that
she was drinking and smoking marijuana. [¶] Every single piece of evidence
that you have heard over the course of this trial supports [T.S.].”
In arguing that the evidence supported T.S.’s credibility, the prosecutor
stated T.S. had made prior statements that were consistent with her
testimony; medical records reflected an injury to T.S.’s head; Fields witnessed
some of the incident and testified about it; Wallace’s actions after T.S. fell
and he came outside (first grabbing T.S. again and then fleeing) supported
that “there was domestic abuse inside of the apartment”; and Wallace had a
prior conviction for domestic violence.
During this argument, the prosecutor made statements about T.S.’s
credibility. As to T.S.’s statements to emergency personnel, the prosecutor
stated: “Why would [T.S.] lie to them? You have to give accurate information
to the people who are giving you medical care. She is telling the truth.”
Later, acknowledging inconsistencies between T.S.’s and Fields’s statements
(as to the words T.S. yelled after she fell, and as to whether Wallace grabbed
T.S.’s hair or her arm after he came outside), the prosecutor stated “it’s my
argument that that makes their testimony more credible,” because it was
clear they were not collaborating to provide identical accounts.
10
The prosecutor later stated T.S. had been “open and honest” in
admitting her drug and alcohol use and describing other incidents of domestic
violence that she had not reported. The prosecutor stated “[a]ll of this gives
her more credibility.” Again noting that T.S. did not “get [Wallace] in
trouble” after the two prior domestic violence incidents, the prosecutor stated:
“Her goal is not to get the defendant [in] trouble. She is an extremely
credible witness. You saw the emotion on her and [Fields’s] faces when they
testified in court.” The prosecutor argued all the evidence supported T.S.’s
testimony, while “the only alternative explanation” was not plausible—“that
she jumped out of a window for no reason, breaking three bones,” and she
“immediately lied to the emergency personnel who arrived on scene to give
her medical care, that she lied at the preliminary hearing, and now, more
than three years later, she’s lying again.”
2. Legal Standards
“The standards under which we evaluate prosecutorial misconduct may
be summarized as follows. A prosecutor’s conduct violates the Fourteenth
Amendment to the federal Constitution when it infects the trial with such
unfairness as to make the conviction a denial of due process. Conduct by a
prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves the use of
deceptive or reprehensible methods to attempt to persuade either the trial
court or the jury. Furthermore, and particularly pertinent here, when the
claim focuses upon comments made by the prosecutor before the jury, the
question is whether there is a reasonable likelihood that the jury construed
or applied any of the complained-of remarks in an objectionable fashion.”
(People v. Morales (2001) 25 Cal.4th 34, 44.)
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3. Analysis
Wallace contends that, in the prosecutor’s rebuttal argument, she
improperly vouched for T.S.’s credibility and made improper references to
voir dire. Wallace also argues the prosecutor misstated the law (both in voir
dire and in her rebuttal argument) as to how jurors should evaluate the
impact of intoxication on T.S.’s credibility. We find no reversible error.
As an initial matter, we agree with the Attorney General that Wallace’s
arguments on this point are forfeited. A claim of prosecutorial misconduct is
forfeited where the defense fails to “ ‘make a timely and specific objection to
the alleged misconduct and request the jury be admonished to disregard it.’ ”
(People v. Peoples (2016) 62 Cal.4th 718, 797 (Peoples).) “This rule applies to
asserted prosecutorial misconduct committed during voir dire.” (People v.
Medina (1995) 11 Cal.4th 694, 740.) “ ‘A defendant will be excused from the
necessity of either a timely objection and/or a request for admonition if either
would be futile.’ ” (Peoples, at p. 797.)
Wallace acknowledges that his trial counsel did not object to the
prosecutor’s statements on the grounds he now raises on appeal and did not
ask the court to admonish the jury that the statements were improper.
Wallace makes a brief suggestion that objections might have been futile, but
he does not develop this argument, and we reject it. (Peoples, supra,62 Cal.4th at p. 797 [“Without greater specificity as to why this particular
objection would have fallen upon deaf ears, we cannot conclude that it would
have been futile for defendant to object to statements made during the . . .
closing arguments.”].)
In any event, we find no misconduct. First, the prosecutor did not
improperly vouch for T.S.’s credibility. “ ‘ “[A] prosecutor is given wide
latitude to vigorously argue his or her case” ’ [citation] and ‘ “may make
12
‘assurances regarding the apparent honesty or reliability of’ a witness ‘based
on the “facts of [the] record and the inferences reasonably drawn
therefrom.” ’ ” ’ [Citation.] ‘Improper vouching occurs when the prosecutor
either (1) suggests that evidence not available to the jury supports the
argument, or (2) invokes his or her personal prestige or depth of experience,
or the prestige or reputation of the office, in support of the argument.’ ”
(People v. Rodriguez (2020) 9 Cal.5th 474, 480.)
As outlined above, the prosecutor argued in detail that the evidence
supported T.S.’s credibility. This was proper argument. The prosecutor
emphasized T.S.’s prior consistent statements, the medical evidence
reflecting the injury to her head, Fields’s testimony, Wallace’s actions after
the incident, and his prior conviction for domestic violence. The prosecutor
did not suggest that evidence not available to the jury supported her
argument and did not invoke her personal prestige or experience as a basis
for the jury to find T.S. credible. And the prosecutor’s specific statements
highlighted by Wallace—that T.S. “is telling the truth” or “is an extremely
credible witness”—were made during, and were based on, the prosecutor’s
argument that the evidence supported T.S.’s credibility.
Wallace argues, however, that the evidence cited by the prosecutor “did
not resolve the issue of credibility,” and T.S.’s intoxication “better explained”
her actions in jumping out of the window. But it was not improper for the
prosecutor to urge the jury to consider the evidence supporting T.S.’s
testimony. As to the evidence of T.S.’s intoxication, defense counsel was free
to (and did) argue that it provided a basis to discount T.S.’s credibility.
Turning to the prosecutor’s statements about intoxication specifically,
we again find no reversible error. Wallace takes issue with the prosecutor’s
statement in her rebuttal argument that jurors had “promised” that they
13
would not “hold it against” T.S. that she had been drinking and smoking
marijuana. He also faults the prosecutor for quoting (or paraphrasing) the
statements by a prospective juror (Juror 3, discussed above) about how she
would view a witness who used drugs. Wallace asserts these and other
statements in the prosecutor’s rebuttal (as well as some of the prosecutor’s
earlier questions during voir dire) misstated the law as to whether a
witness’s intoxication may be considered in assessing the witness’s
credibility. We disagree.
As Wallace notes, Evidence Code section 780 permits jurors to consider
various matters in assessing credibility, including a witness’s ability to
perceive or recall events, whether the witness has made prior inconsistent
statements, and the witness’s character for honesty or dishonesty.4 The
court’s instructions to the jury reflected this rule. In our view, there is no
reasonable likelihood the jurors construed the prosecutor’s comments about
intoxication to mean they should not evaluate T.S.’s testimony in accordance
with these general principles governing witness credibility.
The prosecutor did not argue jurors should not consider how well T.S.
could perceive or recall the events about which she testified. The prosecutor
did suggest that jurors should not “automatically” disbelieve a victim or
4 Evidence Code section 780 states in part: “Except as otherwise
provided by statute, the court or jury may consider in determining the
credibility of a witness any matter that has any tendency in reason to prove
or disprove the truthfulness of his testimony at the hearing, including but not
limited to any of the following: [¶] . . . [¶] (c) The extent of his capacity to
perceive, to recollect, or to communicate any matter about which he testifies.
[¶] (d) The extent of his opportunity to perceive any matter about which he
testifies. [¶] (e) His character for honesty or veracity or their opposites.
[¶] . . . [¶] (h) A statement made by him that is inconsistent with any part of
his testimony at the hearing.”
14
witness who was under the influence of alcohol or drugs. In connection with
that point, the prosecutor referred to Juror 3’s response during voir dire that
a person’s marijuana use would negatively affect her view of the person’s
character. It was permissible for the prosecutor to urge jurors not to adopt
that approach. And as the Attorney General notes (as Wallace concedes in
reply), Juror 3 was excused during voir dire, so this case does not present the
particular concerns raised when a prosecutor quotes an individual sitting
juror during closing argument. (See People v. Freeman (1994) 8 Cal.4th 450,
517–518 [improper, but harmless, for prosecutor to quote a sitting juror
during argument; “[i]f counsel should not address individual jurors by name,
they should similarly not quote individual jurors”]; People v. Riggs (2008)
44 Cal.4th 248, 324–326 [improper, but harmless, for prosecutor to use a
chart with quotes from individual jurors, in part because it could pressure
jurors to conform their verdict to their earlier statements].) Similarly, the
prosecutor’s questions during voir dire—which we read as an effort to explore
jurors’ attitudes about a witness’s alcohol or marijuana use—did not
improperly suggest to jurors that a witness’s intoxication could not or should
not be considered at all in assessing credibility.
We acknowledge there is some ambiguity in the prosecutor’s statement
in her rebuttal argument that jurors should not “hold it against” T.S. that she
had been drinking and smoking marijuana, and it is puzzling that the
prosecutor linked this argument to a supposed “promise[]” by jurors that they
would not do so.5 But in the context of the prosecutor’s argument as a whole,
5 Neither party has pointed us to a passage in the transcript of the voir
dire proceedings where the prosecutor asked for such a promise. Instead, as
noted, during voir dire, the prosecutor asked prospective jurors questions
about how a witness’s alcohol or drug use would affect the jurors’ assessment
of the witness’s credibility or character.
15
we do not think there is a reasonable likelihood the jurors construed or
applied this comment in an objectionable fashion. (See People v. Morales,
supra, 25 Cal.4th at p. 44.) The comment followed the prosecutor’s
suggestion that jurors should not “automatically” discount (or refuse to
believe) a witness’s testimony because of intoxication. And the prosecutor did
not argue the converse—that T.S. should automatically be believed. Instead,
as noted, the prosecutor argued at length that the evidence supported T.S.’s
credibility. In this context, there is no reasonable likelihood the jurors
construed the prosecutor’s statement that they should not “hold it against”
T.S. that she consumed alcohol and marijuana as an assertion that a
witness’s intoxication could not be considered at all in assessing credibility.
We find no misconduct and no basis for reversal.6
Finally, although it is not necessary to our decision, the court’s
instructions bolster our conclusion that no reversible error occurred. The
court instructed the jurors (with CALCRIM No. 226) that they alone were to
judge the credibility of witnesses, using their “common sense and experience.”
Consistent with Evidence Code section 780, the instruction stated jurors
could consider any factor that reasonably tended to prove or disprove the
truth or accuracy of a witness’s testimony, including the witness’s ability to
perceive or remember events and any prior inconsistent statements. In other
instructions, the court emphasized that “[n]othing that the attorneys say is
evidence” and that “[i]f you believe that the attorneys’ comments on the law
conflict with my instructions, you must follow my instructions.” In our view,
6 Because we have addressed and rejected Wallace’s claim of
prosecutorial misconduct, we need not address the parties’ arguments as to
whether Wallace’s trial counsel was ineffective in failing to preserve the
claim by objecting to the statements that Wallace now seeks to challenge on
appeal.
16
there is no reasonable likelihood the jurors construed the prosecutor’s
remarks about intoxication or credibility (which, again, were tied to a review
of the evidence) as a claim that they should not evaluate T.S.’s testimony as
instructed by the court.
B. The Upper Term Sentence on Count 1
Wallace contends the court erred when it imposed the four-year upper
term for the count 1 corporal injury conviction, because the court relied on
aggravating factors that were not proven beyond a reasonable doubt, relied
on Wallace’s lack of remorse, and failed to consider mitigating evidence. We
conclude the court properly imposed the upper term.
1. Additional Background
As noted, the jury did not find, and was not asked to find, the
aggravating factors that were alleged in the information, including that the
crime involved great violence or great bodily harm (rule 4.421(a)(1)), the
victim was particularly vulnerable (rule 4.421(a)(3)), and Wallace took
advantage of a position of trust (rule 4.421(a)(11)). In a bifurcated court trial,
the court found beyond a reasonable doubt that Wallace suffered the four
prior convictions alleged in the information.
In her sentencing recommendation, the prosecutor recommended
imposition of the upper term on count 1 and argued Wallace’s prior
convictions were numerous or of increasing seriousness under
rule 4.421(b)(2). Noting the jury did not make findings on other aggravating
factors, the prosecutor stated she was “solely relying” on rule 4.421(b)(2).
The prosecutor stated, however, that she believed other aggravating factors
had been proven at trial, including the great violence, vulnerable victim, and
position of trust factors. (Rule 4.421(a)(1), (3), (11).)
17
At the sentencing hearing on September 8, 2022, the court imposed the
four-year upper term for the count 1 conviction of corporal injury to a
relationship partner (§ 273.5, subd. (a)). Referring to rule 4.421(b)(2) (the
defendant’s prior convictions are “numerous or of increasing seriousness”),
the court found Wallace’s prior convictions were numerous and stated it was
imposing the upper term based on that finding. The court stated: “Factors in
aggravation related to the defendant, under 4.421(b)(2), the defendant’s prior
convictions as an adult are numerous or of increasing seriousness. I find that
they are numerous. [¶] The defendant’s prior convictions are numerous. . . .
For this reason the Court is imposing the aggravated term for Count 1.” The
court outlined Wallace’s four prior felony convictions between 1998 and 2011
and stated three of them resulted in prison sentences, including a 2009
conviction for corporal injury to a relationship partner under section 273.5,
subdivision (a), the same offense for which he was convicted in the present
case.
The court stated that, although it was relying on Wallace’s numerous
convictions under rule 4.421(b)(2) to impose the upper term, the present
crime involved great violence and great bodily harm within the meaning of
rule 4.421(a)(1). The court stated: “Although the Court is sentencing the
defendant to the aggravated term based on the aggravating factor that I just
mentioned, which is his—which is the defendant’s prior convictions as an
adult are numerous, I would also note that this crime did involve great
violence and bodily harm and the defendant was convicted for this identical
offense and served two years in state prison for it on the previous conviction
for the 273.5.
“With regard to that factor—and as I indicated, I’m relying on the
numerous convictions, but the Court must note that the crimes in this case
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under 4.421(a)(1) involve great violence, great bodily harm, and acts
displaying a high degree of callousness. The defendant’s actions against the
victim, [T.S.], evidenced great violence against a woman who is much smaller
than him, 178 pounds, and he was 350 pounds at the time of the offense.”
The court stated the trial evidence showed T.S. was violently assaulted in the
apartment and had to escape by jumping from a third-floor window,
sustaining significant injuries.
The court also stated: “Apparently, to this day the defendant has no
remorse for the harm caused by his actions, and he told the probation officer
as recently as September 1st of 2022, ‘I just feel like I was wrongly convicted
for something I didn’t do.’ ”
The court found no circumstances in mitigation.
2. Analysis
Wallace argues that, by imposing the upper term, the court violated the
rules governing determinate triad sentencing set forth in section 1170,
subdivision (b), as amended by Senate Bill No. 567 (2021–2022 Reg. Sess.)
(Senate Bill 567),7 legislation that took effect on January 1, 2022.8 We
disagree.
“Senate Bill 567 amended section 1170, subdivision (b) to specify that,
when a sentencing court chooses a term from a statutory triad, the chosen
term shall not exceed the middle term, unless the facts supporting the
aggravating circumstances are (1) established by the defendant’s stipulation
7 Wallace cites Assembly Bill No. 124 (2021–2022 Reg. Sess.) on this
point, but it is Senate Bill 567 that made the relevant changes to
section 1170. (People v. Jones (2022) 79 Cal.App.5th 37, 44, fn. 11.)
8 As noted, Wallace was sentenced in September 2022, after Senate
Bill 567 had taken effect. This case does not involve retroactive application of
Senate Bill 567.
19
to them, (2) proven to a jury (or to a court, if jury is waived) beyond a
reasonable doubt, or (3) based on prior convictions evidenced by a certified
record of conviction. (Stats. 2021, ch. 731, §§ 1.3, 3(c), adding Pen. Code,
§ 1170, subd. (b)(1)–(3).)” (People v. Jones, supra, 79 Cal.App.5th at p. 44.)
“Senate Bill 567 also added a provision that requires the court to impose the
low term if the defendant’s psychological, physical, or childhood trauma was
a contributing factor in the commission of the offense, ‘unless the court finds
that the aggravating circumstances outweigh the mitigating circumstances
[so] that imposition of the lower term would be contrary to the interests of
justice.’ (Stats. 2021, ch. 731, § 1.3, adding Pen. Code, § 1170, subd. (b)(6);
see Stats. 2021, ch. 731, § 3(c).)” (Ibid.)
The court’s selection of the upper term for count 1 did not violate
section 1170, subdivision (b). First, as to the proof requirements for the facts
underlying aggravating circumstances (§ 1170, subd. (b)(1)–(3)), the court
stated repeatedly that it was relying on Wallace’s numerous prior convictions
(rule 4.421(b)(2))—which included four felony convictions—to impose the
upper term. The court could properly consider the convictions themselves
both because they were proven beyond a reasonable doubt to the court in a
bifurcated bench trial (§ 1170, subd. (b)(2)) and because they were based on
certified records of conviction (id., subd. (b)(3)). And beyond the bare fact
that the convictions occurred, in our view the court had authority under
section 1170, subdivision (b)(3) to determine at sentencing that Wallace’s
convictions were “numerous” within the meaning of rule 4.421(b)(2). (People
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v. Wiley (2023) 97 Cal.App.5th 676, 685, review granted Mar. 12, 2024,
S283326.)9 The court had a proper basis to impose the upper term.
Wallace argues that, because the trial court discussed other factors
(including the circumstances of the present crime and the great violence
factor in rule 4.421(a)(1)), the court must be found to have improperly relied
on aggravating factors that were not proven in conformance with
section 1170, subdivision (b). We disagree. As noted, the court repeatedly
emphasized it was relying on Wallace’s numerous prior convictions under
rule 4.421(b)(2) as the basis for selecting the upper term. That the court also
stated its views about the present crime (such as that it involved great
violence under rule 4.421(a)(1)) does not show error.
In a similar argument, Wallace suggests the court improperly relied on
his lack of remorse as an aggravating factor. But again, the court’s mention
of Wallace’s lack of remorse provides no basis to disregard the court’s
statement that it was relying on Wallace’s prior convictions in imposing the
upper term.
In addition to the proof requirements in section 1170,
subdivision (b)(1)–(3), Wallace suggests the court failed to weigh mitigating
evidence and did not comply with the requirement in section 1170,
subdivision (b)(6) that, in some circumstances, a sentencing court is to treat
9 In Wiley, we concluded that, under both the Sixth Amendment and
section 1170, subdivision (b)(3), “the prior conviction exception” to the
heightened proof requirements for aggravating factors “includes both the fact
of a prior conviction and ‘other related issues’ [citation] that may be
determined from a certified record of conviction.” (People v. Wiley, supra,
97 Cal.App.5th at p. 685, rev. granted; see id. at pp. 682–683, 686.) The
California Supreme Court granted review on this question. (People v. Wiley,
review granted Mar. 12, 2024, S283326.) Pending further guidance from the
California Supreme Court, we will adhere to our decision in Wiley.
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the lower term in a triad as the presumptive sentence.10 He also asserts the
trial court did not understand the scope of its sentencing discretion under
section 1170, subdivision (b). We find no error.
The record does not support any suggestion that the court
misapprehended the scope of its discretion or improperly ignored mitigating
evidence. As discussed, the court stated it was imposing the upper term
based on Wallace’s prior convictions (while also stating the present crime was
a serious one) and stated it found no mitigating factors were present. The
court stated it had considered the rules of court pertaining to aggravating
and mitigating factors (rules 4.421 and 4.423). The court also noted it had
received and considered the probation report and the sentencing briefs filed
by the parties, as well as defense counsel’s submission of letters from
Wallace’s family members and friends. The court also “had an opportunity to
listen to and observe every witness and view all the evidence that was
presented during the trial.” That the court ultimately found no factors in
mitigation related to the crime or to the defendant (see rule 4.423) provides
no basis to conclude the court ignored or improperly discounted any of the
evidence presented to it.
On appeal, Wallace suggests certain brief passages in the probation
report—relaying statements by Wallace that his mother had been addicted to
crack cocaine in the past, and that Wallace had consumed alcohol and
10 Section 1170, subdivision (b)(6) states in part: “[U]nless the court
finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be contrary to the
interests of justice, the court shall order imposition of the lower term if any of
the following was a contributing factor in the commission of the offense:
[¶] (A) The person has experienced psychological, physical, or childhood
trauma, including, but not limited to, abuse, neglect, exploitation, or sexual
violence.”
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marijuana—supported a presumptive low term under section 1170,
subdivision (b)(6)(A). But the trial court was not obligated to infer from these
statements that Wallace had suffered trauma of the type that would trigger
the section 1170, subdivision (b)(6)(A) presumption. And we note the
probation report also relayed statements by Wallace that he had a “ ‘pretty
regular’ ” childhood; he was not subjected to mental, physical, or sexual abuse
as a child or teenager; and he was not dependent on alcohol or addicted to
illegal drugs.11
Because we conclude the court did not err in imposing the upper term
for count 1, we need not address Wallace’s argument that the purported error
was prejudicial. And, since we have considered Wallace’s challenges to his
sentence on the merits (rather than holding they were forfeited), we need not
consider his contention that his trial counsel was ineffective for failing to
preserve the claims for appeal.
C. The Stayed Sentence on Count 2
The court imposed an eight-month term for the false imprisonment
charge in count 2 and stayed that term under section 654. The eight-month
term is incorrect. Eight months is one third of the two-year middle term
applicable to the count 2 conviction for false imprisonment by violence, which
11 The California Supreme Court’s recent decision in People v. Salazar
(2023) 15 Cal.5th 416 (Salazar), which Wallace cites in his reply brief, is
inapposite. In Salazar, the defendant was sentenced before Senate Bill 567
took effect, and the Attorney General conceded Salazar may have suffered a
qualifying trauma that would trigger the new low term presumption in
section 1170, subdivision (b)(6). (Salazar, at p. 419.) Because there was no
clear indication in the record that the trial court would have imposed the
same sentence if it had been aware of the scope of its discretion under current
law, the Supreme Court concluded the case should be remanded for
resentencing. (Ibid.) Here, as noted, Senate Bill 567 took effect before
Wallace’s sentencing, and the court properly applied current law.
23
is punishable by a term of 16 months, two years, or three years. (§§ 236, 237,
subd. (a), 1170, subd. (h)(1).) But the “one-third-the-midterm rule of
section 1170.1, subdivision (a), only applies to a consecutive sentence, not a
sentence stayed under section 654.” (People v. Cantrell (2009)
175 Cal.App.4th 1161, 1164.) The correct approach would be to impose one of
the three full terms applicable to the offense (16 months, two years, or three
years) and stay execution of that sentence under section 654 (without making
any determination whether the term should run concurrently or
consecutively).
As to the remedy, if we were to remand for a new sentencing hearing, it
“would mean pulling defendant out of his prison programming and busing
him to [court] for a new sentencing hearing that will not change his actual
prison time. The futility and expense of such a course militates against it.”
(People v. Alford (2010) 180 Cal.App.4th 1463, 1473.) Instead, we will
exercise our authority to modify the judgment. (§ 1260; see Alford, at
p. 1473.) On count two, we will impose the three-year upper term (§§ 236,
237, subd. (a), 1170, subd. (h)(1)), because “that is undoubtedly the sentence
the trial court would have imposed” (Alford, at p. 1473), based on the court’s
explanation of its decision to impose the upper term for count 1. (See
Salazar, supra, 15 Cal.5th at p. 419 [if the trial court did not understand the
scope of its sentencing discretion, remedy is to remand for resentencing
unless the record clearly indicates the conclusion the court would have
reached had it been aware of its discretion].) We will stay execution of the
sentence on count 2. (§ 654.)
III. DISPOSITION
The judgment is modified to impose a three-year term (rather than an
eight-month term) for count 2 and to stay that sentence pursuant to
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section 654. The trial court is directed to prepare an amended abstract of
judgment reflecting that modification. The court shall forward a certified
copy of the amended abstract of judgment to the Department of Corrections
and Rehabilitation. As so modified, the judgment is affirmed.
STREETER, Acting P. J.
WE CONCUR:
GOLDMAN, J.
HITE, J.*
* Judge of the Superior Court of California, City and County of San
Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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