People v. Cross CA3 ( 2023 )

Filed 12/11/23 P. v. Cross 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C095957
Plaintiff and Respondent, (Super. Ct. No. 21FE009616)
v.
JEFFREY MARTIN CROSS,
Defendant and Appellant.
Among other charges, a jury found defendant Jeffrey Martin Cross guilty of
assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)),1
and in bifurcated proceedings also found he suffered two prior serious felony convictions
(§ 667, subd. (a)). The trial court sentenced Cross to an aggregate term of 26 years, plus
1 Undesignated statutory references are to the Penal Code.
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25 years to life, which included two five-year prior serious felony enhancements (§ 667,
subd. (a)) on the assault conviction.
On appeal, Cross contends, and the People agree, that the trial court erred in
imposing the five-year prior serious felony enhancements on the assault with force likely
to produce great bodily injury conviction, as that is not a serious felony. Cross also
contends trial counsel rendered ineffective assistance of counsel by failing to ask the trial
court to dismiss the prior serious felony enhancements under amended section 1385,
subdivision (c) and the abstract of judgment incorrectly reflects a conviction under
section 245, subdivision (a)(1) rather than section 245, subdivision (a)(4), and must be
corrected.
We agree with the parties that the trial court erred in imposing two five-year prior
serious felony enhancements on the assault with force likely to produce great bodily
injury. Accordingly, we will strike those enhancements, vacate the sentence, and remand
the matter for a full resentencing. Based on this disposition, we need not address Cross’s
remaining claims.
BACKGROUND
Bill H. and Ben G. were friends living in a homeless camp. They both also knew
Cross, who camped near them and came by their camp daily. Early one morning, Cross
attacked Bill H. while he was in his sleeping bag. Cross hit and kicked Bill H.
repeatedly, and Ben G. saw Cross pick up a wooden stool and hit Bill H. with it. Bill H.
was knocked unconscious and suffered bruised and cracked ribs. Later that morning,
Cross returned to the camp and Cross and Bill H. argued. Cross told Bill H. and Ben G.
that he if was going back to prison for the rest of his life, it would be for a reason. Bill H.
took this as a threat to kill him.
A jury found Cross guilty of assault with force likely to produce great bodily
injury (§ 245, subd. (a)(4)), making criminal threats (§ 422), and dissuading a witness
(§ 136.1, subd. (c)). In bifurcated proceedings, the jury also found Cross had suffered
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three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two
prior serious felony convictions (§ 667, subd. (a)). The trial court sentenced Cross to an
aggregate term of 26 years plus 25 years to life, which included: 25 years to life on
making criminal threats and dissuading a witness under the three strikes law (§ 667, subd.
(e)(2)(A)(ii)); a three-year term on the assault conviction, doubled to six under the three
strikes law (§ 667, subd. (e)(1)); and two five-year prior serious felony enhancements
(§ 667, subd. (a)) on both the assault and dissuading a witness convictions. Cross filed a
notice of appeal with this court in March 2022. His opening brief was filed in June 2023,
and this case was fully briefed on October 5, 2023.
DISCUSSION
The parties agree the trial court erred in imposing two prior serious felony
enhancements on the assault with force likely to produce great bodily injury, as that
conviction is not a serious felony.
Section 667, subdivision (a) provides for a five-year sentence enhancement when a
defendant convicted of a “serious felony” listed in section 1192.7, subdivision (c) has
been previously convicted of a serious felony. (§ 667, subd. (a)(1), (4).) Without
something more, assault with force likely to produce great bodily injury is not a serious
felony under section 1192.7, subdivision (c). (People v. Banuelos (2005) 130
Cal.App.4th 601, 604; People v. Haykel (2002) 96 Cal.App.4th 146, 149-151; § 1192.7,
subd. (c)(11), (13), (31), (32) [involves the use of a deadly weapon]; § 1192.7, subd.
(c)(10), (29) [committed with the intent to commit another specified offense such as rape
or robbery]; § 1192.7, subd. (c)(12), (31), (32) [committed against a particular class of
victims]; § 1192.7, subd. (c)(8) [results in personal infliction of great bodily injury].)
There was no finding of “something more” in this case. Because Cross’s conviction for
assault with force likely to produce great bodily injury was not a serious felony under
section 1192.7, subdivision (c), the trial court erred in imposing two five-year prior
serious felony enhancements on that conviction and these enhancements must be stricken.
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When part of a sentence is stricken on review, remand for a full resentencing on
all counts and allegations is appropriate, unless the court already imposed the maximum
allowable term. (People v. Buycks (2018) 5 Cal.5th 857, 893, 896, fn. 15.) Here, the trial
court did not impose the maximum possible sentence. On remand, Cross is entitled to a
full resentencing where the trial court may reconsider all sentencing choices, so the court
can exercise its discretion in light of any changed circumstances. (Id. at p. 893.)
DISPOSITION
The two five-year prior serious felony enhancements imposed on the assault with
force likely to produce great bodily injury conviction are stricken, the sentence is
vacated, and the matter is remanded for a full resentencing. (Peracchi v. Superior Court
(2003) 30 Cal.4th 1245, 1254-1255.)
/s/
BOULWARE EURIE, J.
We concur:
/s/
EARL, P. J.
/s/
ROBIE, J.
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