People v. Lee CA2/7

Filed 1/11/23 P. v. Lee CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B316402
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA473340)
v.
CHARLES RICHARD LEE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo, Acting Supervising
Deputy Attorney General, and Theresa A. Patterson, Deputy
Attorney General, for Plaintiff and Respondent.
__________________________
A jury found Charles Richard Lee guilty of assault causing
the death of a child and second degree murder as a result of the
drowning death of Lee’s four-year-old daughter, Zaraellia
Thompson. On appeal Lee argues the evidence was insufficient
to support the verdicts, the trial court failed to adequately
instruct the jury on causation and the case must be remanded for
resentencing based on recent amendments to Penal Code
section 654.1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Lee was charged in an information filed March 3, 2020 with
assault on a child causing death (§ 273ab, subd. (a)) and second
degree murder (§ 187, subd. (a)).2
2. The Evidence at Trial
a. The circumstances surrounding Zaraellia’s death
Lee did not know he had a daughter until May 2018 when
Zaraellia’s mother, Tisha Thompson, introduced four-year-old
Zaraellia to Lee. From May to November 2018 Zaraellia visited
Lee at his home on occasion and spent the night at least once. In
early November 2018 Thompson left Zaraellia with Lee for an
extended visit. Lee lived with his mother, her ex-boyfriend and a
tenant. When Zaraellia visited Lee in November 2018, she
shared Lee’s bedroom.
1 Statutory references are to this code.
2 The information also contained special allegations
pursuant to sections 667 and 1170.12 regarding a prior
conviction. The special allegations were dismissed prior to trial
at the request of the prosecution.
2
On the morning of December 2, 2018 Lee called the police
emergency number because he found Zaraellia in the bathtub
unconscious and not breathing.3 Firefighter-paramedic Jesse
Pena was the first responder to arrive at the scene. Pena
testified Lee met him at the door and took him to Zaraellia, who
was lying on her back on the floor of Lee’s bedroom. She was not
breathing and had no pulse. Pena observed Zaraellia’s upper
body and hair were wet but the lower half of her body appeared
dry. Pena also noticed Zaraellia had several significant wounds
on her body, including on her inner thighs, groin, stomach and
face. Some of those wounds appeared to be third degree burns.
While in the ambulance en route to the hospital, Pena
asked Lee when and how Zaraellia had received her injuries. Lee
initially said the wounds were two days old, but then said they
were about two weeks old. Lee told Pena that Zaraellia had gone
to the beach with her mother two weeks earlier, and he believed
the injuries could have been an infection from the sand or the
water. Lee then said Zaraellia liked to sit next to the space
heater and could have burned herself. Pena also asked Lee what
happened to cause Zaraellia to lose consciousness in the bathtub.
Lee said he did not know what happened—Zaraellia was taking a
bath, and Lee stepped out of the room briefly. When he came
back, Zaraellia was unresponsive. Pena testified Lee appeared
calm.
Thompson testified Zaraellia was a healthy child. She
could ride a bicycle, recite the alphabet and write her name. She
knew how to swim and bathed herself, although Thompson
always stayed in the room with her. When Thompson left
3 A recording of Lee’s telephone call was played for the jury.
3
Zaraellia with Lee, Zaraellia had a bite mark from another child
and a healing area on her forehead from her accidental use of
hair removal cream when visiting Lee in October 2018, but no
significant injuries. Thompson spoke to Zaraellia on the
telephone the day before the child’s death. Thompson testified
Zaraellia said she was tired and wanted to go to sleep, but
Zaraellia did not indicate anything was wrong.
Lee’s mother, Cynthia Brown Lee, testified Zaraellia
primarily stayed in Lee’s bedroom while visiting in November
2018. In contrast, Lee’s then-seven-year-old son frequented other
rooms of the house when he visited, including the kitchen and
Brown Lee’s room. Brown Lee typically saw Zaraellia outside the
bedroom once or twice a week. Although Brown Lee did not
recall when she last saw the child, on that occasion Zaraellia may
have had a puffy eye; but Brown Lee did not notice any other
injuries. On the day of Zaraellia’s death, Brown Lee heard
Zaraellia laughing from the bedroom early in the morning. She
did not know anything was wrong until the ambulance arrived
later that morning.
Due to his unavailability at trial, the preliminary hearing
testimony of Perry Thomas, Brown Lee’s tenant, was read to the
jury. According to Thomas, when Zaraellia first came to stay
with Lee in early November, she played outside with the
neighbor’s kids and spent time in the common areas of the house.
Within a couple of weeks, however, Zaraellia stopped leaving the
bedroom. Thomas said he “just didn’t see her anymore,” but he
occasionally heard her or saw her through the bedroom window.
At some point Thomas asked Lee why no one ever saw Zaraellia.
Lee seemed annoyed and did not respond.
4
b. The medical examiner’s testimony
A medical examiner with the Los Angeles County Medical
Examiner-Coroner’s Office testified, in his opinion, Zaraellia’s
death was caused by drowning and the manner of death was
homicide.4 He explained Zaraellia had several injuries that had
occurred around the time of death: bruising on her right cheek,
lacerations on her forehead and right nostril, internal bruising
and bleeding on her left scalp muscle, internal bruising on her
diaphragm and severe intestinal bruising. He testified the
internal bruising to Zaraellia’s intestines and diaphragm would
have been very painful but would not have affected her ability to
breathe.
Zaraellia also had numerous injuries in various stages of
healing: circular-pattern injuries on her right cheek, forehead,
arms and back; splash-pattern wounds on her cheeks and under
her eyes, likely caused by a hot liquid; wounds on both ears;
scrapes on her neck, chin, abdomen and chest; wounds on her
abdomen consisting of four evenly-spaced lines, approximately 3
to 4 centimeters in length, that may have been burns; similar
lined injuries on her chest; a horseshoe-shaped injury on her
torso, possibly inflicted by an electrical wire or belt; a cluster of
wounds on her left thigh, possibly caused by hot liquid; multiple
wounds on her right buttock; wounds on her hands; lacerations in
her mouth, likely from blunt force trauma; and scars on her
4 The two medical examiners who had conducted Zaraellia’s
autopsy in 2018 no longer worked for the County by the time of
trial. In preparation for trial the testifying medical examiner
reviewed the autopsy, toxicology and investigator reports, as well
as approximately 200 photographs connected to the case.
5
knees, back and near her right eye. The medical examiner
estimated these injuries were days to weeks old.
Explaining his conclusion Zaraellia’s death was a homicide,
the medical examiner stated it was unexpected for an otherwise
healthy four-year-old to drown in a bathtub—typically a child of
that age would be capable of standing up to escape from danger.
In addition, the new injuries (and the absence of any explanation
for them) indicated a struggle had taken place at the time of the
drowning. The medical examiner also explained wounds at
various stages of healing are consistent with ongoing child abuse,
a factor supporting the determination that child abuse played a
role in Zaraellia’s death. Collectively, he opined, the
circumstances here were highly suspicious and consistent with a
homicide.
c. Lee’s recorded interviews
The day of Zaraellia’s death, Lee was questioned by police
officers in three separate interviews. Recordings of the
interviews were played for the jury.
The first interview occurred at the hospital shortly after
Zaraellia’s death. Lee said he left Zaraellia alone in the bathtub
for less than a minute while he went to get her a towel. When he
came back, she was unconscious.
The second interview, recorded on video, took place at Lee’s
house on the evening of the drowning, during which Lee
described the events of that morning and showed the police
officers where they took place. Lee stated he walked Zaraellia to
the bathroom and put her in the bathtub, a walk-in tub with a
door that opened and a bench inside. Lee said the water was
about seat level in the bathtub. Zaraellia was sitting up, and her
head was above the water. Lee left to get a towel from his
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bedroom. When he returned less than a minute later, Zaraellia
was on her knees with her head lying on her hands on the
bathtub seat, the way someone would lay their head on a desk.
The water level was still at her chest. Lee thought Zaraellia was
asleep, but she would not respond to him. He picked her up, lay
her on the bathroom floor and tried to resuscitate her. When he
was unsuccessful, he carried Zaraellia to his bedroom and put her
on the floor.
When asked about the burn marks on Zaraellia’s body, Lee
again suggested they had come from the heater. He said he had
applied ointment every day to Zaraellia’s legs in the places with
open wounds. He claimed he had not noticed certain injuries
were in repetitive circular and linear patterns. Lee believed
scratches on Zaraellia’s arms had come from the dog they had
acquired two days earlier. Lee stated he had not seen any
injuries to Zaraellia’s stomach or face the morning of her death,
but he had noticed bruises on her face two days earlier. Zaraellia
told him they were from falling off the bed. Zaraellia had
complained of pain to her ears after going to the beach two weeks
before her death. Lee put ice and ointment on the wounds. Lee
confirmed Zaraellia did not have any injuries when she first came
to stay with him in early November.
The third interview was conducted at the police station on
the night of Zaraellia’s death.5 Lee told police officers, when
Zaraellia came to visit him prior to November 2018, she
occasionally played outside with kids in the neighborhood.
However, after she got sunburned at the beach in early
5 At the beginning of this interview police officers informed
Lee of his rights under Miranda v. Arizona (1966) 384 U.S. 436.
7
November, Lee no longer let her go outside because he thought
the sun would aggravate the sunburn. When asked whether he
was aware of the injuries on Zaraellia’s body, Lee replied he knew
she had scratches on her groin because she had complained it
hurt to urinate. Once he saw the scratches, he applied ointment
to them.
Lee told police Zaraellia had been having problems the past
few weeks controlling urination and bowel movements. When
she urinated or defecated in the bed, Lee would get angry and
yell at her. At least once he hit her on the hand or with a belt.
Lee stated Zaraellia defecated in the bathtub the day of the
drowning.
Lee insisted he did not know how Zaraellia received most of
her injuries. He speculated the burns were from the heater. He
also said there had been a period when the heater in his bedroom
had not worked, and he used a hair dryer to keep warm. He
would hold the hair dryer under the blankets in the bed to warm
himself and Zaraellia. He believed the hair dryer could have
caused the burns on the child’s legs. Later in the interview Lee
said Zaraellia had complained a week earlier that the bath water
was too hot and suggested that could have been how she got the
injuries on her groin and legs.
Lee gave a different account of the drowning during this
interview. He said he had left Zaraellia alone in the bathtub for
a minute or two to smoke a cigarette. He also said the water was
up to her neck rather than her chest. He repeatedly denied
drowning Zaraellia.
3. The Verdict and Sentence
The jury found Lee guilty of assault causing the death of a
child and second degree murder. The trial court sentenced Lee to
8
an indeterminate state prison term of 25 years to life for assault
causing the death of a child. The court imposed and stayed
pursuant to section 654 a sentence of 15 years to life for second
degree murder.
DISCUSSION
1. Substantial Evidence Supports the Convictions
a. Standard of review
In considering a claim of insufficient evidence in a criminal
case, “we review the whole record to determine whether any
rational trier of fact could have found the essential elements of
the crime or special circumstances beyond a reasonable doubt.
[Citation.] The record must disclose substantial evidence to
support the verdict—i.e., 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.] In
applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably
have deduced from the evidence. [Citation.] ‘Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify
the reversal of a judgment, for it 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.
[Citation.]’ [Citation.] A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis
whatever is there sufficient substantial evidence to support’” the
jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357;
9
accord, People v. Dalton (2019) 7 Cal.5th 166, 243-244; People v.
Penunuri (2018) 5 Cal.5th 126, 142.) “‘Where the circumstances
reasonably justify the trier of fact’s findings, a reviewing court’s
conclusion the circumstances might also reasonably be reconciled
with a contrary finding does not warrant the judgment’s
reversal.’” (People v. Clark (2016) 63 Cal.4th 522, 626.)
b. Substantial evidence supports the conviction for
assault resulting in the death of a child
“Assault on a child resulting in death requires a showing
that (1) the defendant had care or custody of a child under
eight years old, (2) the defendant did an act that by its nature
would directly and probably result in the application of force to
the child, (3) the defendant did that act willfully, (4) the force
used was likely to produce great bodily injury, (5) when the
defendant acted, he was aware of facts that would lead a
reasonable person to realize that his act by its nature would
directly and probably result in great bodily injury to the child,
(6) when the defendant acted, he had the present ability to apply
force likely to produce great bodily injury to the child, and (7) the
defendant’s act caused the child’s death.” (People v. Sanchez
(2020) 49 Cal.App.5th 961, 978; see § 273ab, subd. (a).)6
The prosecution’s theory at trial was that Lee intentionally
held Zaraellia under the water, resulting in her death. As the
prosecutor told the jury during closing argument, “He is either
6 Section 273ab, subdivision (a), states: “Any person, having
the care or custody of a child who is under eight years of age, who
assaults the child by means of force that to a reasonable person
would be likely to produce great bodily injury, resulting in the
child’s death, shall be punished by imprisonment in the state
prison for 25 years to life.”
10
intentionally holding her under the water to kill her, or he’s
intentionally holding her under the water to punish her because
he is upset with her.”7 The defense’s theory was that Zaraellia
hit her head on the seat of the bathtub while Lee was out of the
room, lost consciousness and drowned. Defense counsel argued
the death was “a tragic accident by a neglectful person.”
On appeal Lee contends there was not substantial evidence
to support the prosecution’s theory that Lee caused Zaraellia’s
death because the injuries inflicted around the time of death
“appear attributable to the child’s fall from her position on the
walk-in tub’s seat when appellant was absent from the room.”
(Italics omitted). Despite this conclusory assertion, there was no
expert testimony a spontaneous fall in the bathtub could have
caused Zaraellia’s most recent injuries. On the other hand, the
medical examiner testified the injuries to Zaraellia’s intestines
and diaphragm could have been caused by someone holding her
stomach-side-down against the seat or wall of the bathtub. The
weight to be given to the medical examiner’s testimony and the
inferences to be drawn from Zaraellia’s injuries were questions
for the jury.
Reviewing the record in the light most favorable to the
prosecution, ample evidence supports a finding Lee held Zaraellia
7 Notably the prosecution did not argue the injuries caused
by ongoing child abuse were the proximate cause of Zaraellia’s
drowning, nor could it have, given the absence of testimony of a
prior injury severe enough to cause cognitive or physical
impairment that might lead to drowning. Defense counsel
underscored this point to the jury in closing argument, stating,
“In this case, the assault is the drowning, not the previous
assault.”
11
under the water until she drowned. In addition to the medical
examiner’s expert testimony that Zaraellia’s contemporaneous
injuries were consistent with being held against the bathtub, he
also opined that such injuries are typically not seen in accidental
drowning cases and most drowning victims are found floating
face down in the water rather than resting their heads out of the
water. There was also testimony from the responding paramedic
that Zaraellia was wet only from the waist up. In addition, the
jurors listened to and/or watched recordings of Lee’s statements
on the day of Zaraellia’s death, from which they could assess his
demeanor and credibility. Based on this evidence, a reasonable
trier of fact could find Lee intentionally drowned Zaraellia.
c. Substantial evidence supports the conviction for
second degree murder
Murder is the unlawful killing of a human being “with
malice aforethought.” (§ 187, subd. (a).) “Malice may be either
express or implied. [Citation.] Express malice is an intent to
kill. . . . Malice is implied when a person willfully does an act,
the natural and probable consequences of which are dangerous to
human life, and the person knowingly acts with conscious
disregard for the danger to life that the act poses.” (People v.
Gonzalez (2012) 54 Cal.4th 643, 653.) “A killing with express
malice formed willfully, deliberately, and with premeditation
constitutes first degree murder. [Citation.] ‘Second degree
murder is the unlawful killing of a human being with malice
aforethought but without the additional elements, such as
willfulness, premeditation, and deliberation, that would support
a conviction of first degree murder.’” (People v. Beltran (2013)
56 Cal.4th 935, 942.)
Lee argues there was no evidence of malice on his part
because Zaraellia’s death was caused by his negligence in leaving
12
her unattended in the bathtub, rather than by actions taken with
an intent to kill or a conscious disregard for the danger to human
life. As discussed, the jury’s rejection of Lee’s negligence theory
at trial and its determination Lee acted with either express or
implied malice were amply supported by the evidence.
2. The Trial Court Did Not Commit Instructional Error
a. Governing law and standard of review
A trial court in a criminal case has a duty to instruct on
general principles of law applicable to the case (People v. Young
(2005) 34 Cal.4th 1149, 1200), that is, “‘“those principles closely
and openly connected with the facts before the court, and which
are necessary for the jury’s understanding of the case.”’” (People
v. Valdez (2004) 32 Cal.4th 73, 115.)
We review defendant’s claim of instructional error de novo.
(People v. Posey (2004) 32 Cal.4th 193, 218.) “In assessing a
claim of instructional error, ‘we must view a challenged portion
“in the context of the instructions as a whole and the trial record”
to determine “‘whether there is a reasonable likelihood that the
jury has applied the challenged instruction in a way’ that violates
the Constitution.”’” (People v. Jablonski (2006) 37 Cal.4th 774,
831.)
b. The trial court properly instructed on assault causing
the death of a child
With respect to the charge of assault causing the death of a
child, the trial court instructed with CALJIC No. 9.36.5, which
states a person who assaults a child “resulting in the child’s
death” is guilty of a violation of section 273ab, subdivision (a).8
8 As given, CALJIC No. 9.36.5 stated, “Defendant is accused
in Count 1 of having violated section 273ab, subdivision (a), of the
Penal Code, a crime. [¶] Every person who, having the care or
13
Lee contends the trial court erred by failing to additionally
instruct the jury sua sponte on the issue of proximate cause.
Specifically, Lee argues the court should have instructed with
language similar to CALCRIM No. 820 (the CALCRIM
instruction regarding section 273ab, subdivision (a)) which, in
addition to listing the elements of the offense, states, “An act
causes death if: [¶] 1. The death was the natural and probable
consequence of the act; [¶] 2. The act was a direct and substantial
factor in causing the death; [¶] AND [¶] 3. The death would not
have happened without the act. [¶] A natural and probable
consequence is one that a reasonable person would know is likely
to happen if nothing unusual intervenes. In deciding whether a
consequence is natural and probable, consider all of the
circumstances established by the evidence. [¶] A substantial
factor is more than a trivial or remote factor. However, it does
not need to be the only factor that caused the death.”9
custody of a child who is under eight years of age, assaults the
child by means of force that to a reasonable person would be
likely to produce great bodily injury, resulting in the child’s
death, is guilty of a violation of Penal Code section 273ab,
subdivision (a), a crime. [¶] ‘Great bodily injury’ means
significant or substantial bodily injury or damage; it does not
mean trivial or insignificant injury or moderate harm. [¶] In
order to prove this crime, each of the following elements must be
proved: [¶] 1. A person had the care or custody of a child under
eight years of age; [¶] 2. That person committed an assault upon
the child; [¶] 3. The assault was committed by means of force that
to a reasonable person would be likely to produce great bodily
injury; and [¶] 4. The assault resulted in the death of the child.”
9 We certainly agree with Lee’s suggestion it would be far
better practice for superior court judges trying criminal cases to
use CALCRIM pattern instructions (see Cal. Rules of Court,
14
Even if not forfeited because not raised in the trial court,10
Lee’s argument is without merit. As Lee acknowledges, the trial
court need only instruct on causation when it is at issue in the
case. (People v. Brasure (2008) 42 Cal.4th 1037, 1056-1057.)
Lee’s conclusory assertion that “causation was ‘the’ disputed
issue with respect to the 273ab charge” and “was the basis for
defense counsel’s motion for a judgment of acquittal at the close
of evidence” misapprehends the record and the relevant legal
theory of causation.
To be sure, defense counsel did move for acquittal based on
the lack of evidence that the injuries inflicted prior to the day of
the drowning caused Zaraellia’s death. However, the court
responded that its understanding of the prosecution’s theory was
the assault that caused Zaraellia’s death was the act of holding
her under water, not any earlier assaults. The prosecutor agreed.
Further, as discussed, both the prosecutor and defense counsel
made clear in their closing arguments that the relevant act
alleged to have caused Zaraellia’s death was not the ongoing child
abuse but the forcible drowning. Accordingly, whether the
injuries Zaraellia sustained from the ongoing child abuse were
the proximate cause of her death was not at issue in the trial.
rule 2.1050(e) [“[u]se of the Judicial Council instructions is
strongly encouraged”]). But it is not error to persist in using
CALJIC instructions where they adequately cover pertinent legal
principles. (See People v. Cornejo (2016) 3 Cal.App.5th 36, 60.)
10 “‘A party may not complain on appeal that an instruction
correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying
or amplifying language.’” (People v. Grimes (2016) 1 Cal.5th 698,
724; accord, People v. Guiuan (1998) 18 Cal.4th 558, 570.)
15
There was only one issue the jury needed to consider in
determining Lee’s criminal liability: Did he forcibly hold
Zaraellia under the water. That is, this was not a case where a
defendant committed an act, and the jury was tasked with
determining whether that act was the proximate cause of death.
(See, e.g., People v. Bland (2002) 28 Cal.4th 313, 335-338
[instruction on proximate cause necessary where jury must
determine whether shots fired by defendant hit the victims and,
even if they did not, whether defendant may have proximately
caused the harm].) Nor was this a case where Lee’s actions set in
motion a chain of events that led to Zaraellia’s death in an
unusual but nonetheless foreseeable manner. (See, e.g., People v.
Crew (2003) 31 Cal.4th 822, 847 [“[t]o relieve a defendant of
criminal liability, an intervening cause must be an unforeseeable
and extraordinary occurrence”].) The question for the jury was
simply whether Zaraellia’s death was the direct result of Lee’s
holding her under the water. Once the jury determined Lee held
Zaraellia under the water, there was no question it resulted in
the child’s death. Consequently, there was no legitimate issue of
proximate cause for which a causation instruction was
necessary.11
11 Because we conclude the failure to give an instruction on
causation was not error, we need not address Lee’s argument
defense counsel was ineffective for failing to request such an
instruction. (See People v. Thompson (2010) 49 Cal.4th 79, 122
[“[c]ounsel is not ineffective for failing to make frivolous or futile
motions”]; People v. Cudjo (1993) 6 Cal.4th 585, 616 [counsel’s
failure to object cannot constitute ineffective assistance when
there was no sound legal basis for an objection].)
16
3. Remand Is Not Appropriate for the Trial Court To
Exercise Its Discretion Under Section 654
When Lee was sentenced on November 9, 2021, section 654,
subdivision (a), provided, in part, “An act or omission that is
punishable in different ways by different provisions of law shall
be punished under the provision that provides for the longest
potential term of imprisonment.” One month earlier, on
October 1, 2021, the Governor signed Assembly Bill No. 518
(2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1), which amended
section 654, effective January 1, 2022, to remove the requirement
that the court impose the longest potential term of imprisonment.
Section 654, subdivision (a), now states, in part, “An act or
omission that is punishable in different ways by different
provisions of law may be punished under either of such
provisions.”
The trial court complied with the then-current version of
section 654, subdivision (a), sentencing Lee to the longer
potential term of imprisonment: 25 years to life for assault
causing the death of a child, rather than the shorter available
sentence of 15 years to life for murder. The court expressly
acknowledged the soon-to-be-effective change in the law, stating,
“[O]ne count must be stayed under 654. As the law currently
exists, I must sentence on the crime that carries the longer
sentence. . . . I do understand that as of January 1, 2022, the
court will have this discretion as to which count to impose and
which count to stay. I shall state now that had I had the
discretion today, I would still sentence on the heavier count,
because that is what this crime is worth.”
Lee contends remand for resentencing is required for the
trial court to exercise its newly enacted discretion to impose the
17
shorter applicable sentence. While Lee concedes the trial court
expressed its awareness of the upcoming changes to the law and
stated it would still impose the longer sentence if it had
discretion not to do so, Lee argues the court’s “bare bones
comment was inadequate for purposes of providing a meaningful
record for appellate review; it constituted an abuse of its newly
created discretionary sentencing authority.”
Lee’s contention lacks merit. The trial court stated it
understood its discretion under amended section 654 and
explained, albeit succinctly, the longer sentence was warranted
by the severity of the crime. Nothing more was required.
Remand is not appropriate.
DISCUSSION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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