People v. Titus CA1/3

Filed 6/2/23 P. v. Titus CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A164999
v.
BYRON DEAN TITUS, JR., (Humboldt County
Super. Ct. No. CR2100262)
Defendant and Appellant.
A jury convicted Byron Titus of multiple felonies, including attempted
murder and aggravated mayhem. He was sentenced to an aggregate prison
term of 50 years to life plus 32 years, 8 months. On appeal, Titus contends
his mayhem conviction must be reversed because the trial court failed to
instruct the jury regarding simple mayhem as a lesser included offense. He
contends further that there were multiple sentencing errors, some of which
the People concede on appeal. We affirm Titus’s convictions and remand for
resentencing.
FACTUAL AND PROCEDURAL SUMMARY
I. The Trial Evidence
A. The Prosecution Case
The incidents that led to charges against Titus occurred on a parcel of
property bordering Highway 96 in Hoopa, California, where Carmelita R. and
her boyfriend Joshua S. lived in their RV. The landowner, Tom C., lived in a
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house adjacent to where the RV was parked. Titus was in a romantic
relationship with Tom’s daughter Chelsea, and they also lived on the
property, in a mobile home located down the hill from the house. Prior to the
incident, Titus, Carmelita, and Joshua were friends, who socialized on a
regular basis.
One day in late December 2020, Carmelita and Joshua went out for the
morning, leaving their dogs locked inside the RV. When they returned, the
door to the RV was open, the dogs were running “amok,” and Joshua’s gun
was missing. Carmelita and Joshua suspected that someone they knew stole
the gun because the dogs had allowed the person to get inside. They came to
suspect Titus because they had only a small circle of friends who spent time
with them at the RV, and Titus was their only friend who stopped interacting
with them after the gun was stolen. Also, Titus had expressed an interest in
Joshua’s gun and offered to buy it more than once, but was told it was not for
sale as it was Joshua’s prized possession.
On January 5, 2021, Carmelita and Joshua shared their suspicion
about Titus with Tom C. because they really wanted to get the gun back.
Later that night, Carmelita went to her aunt’s house while Joshua and some
friends played cards in the RV. Carmelita returned at around 2:00 or 3:00
a.m. on January 6, and after the card players left, she and Joshua decided to
sleep on the couch at the front of the RV. Before they fell asleep, someone
knocked on the door. When Carmelita answered, someone “pushed” a sawed-
off shotgun in her face and tried to push his way up the steps into the RV.
The assailant had partially covered his face with a bandana, but his eyes
were angry, and his voice was familiar. At trial, Carmelita was unable to
recall what the man said. She testified that when she realized he was trying
to shoot Joshua, whose was lying on the couch with his back to the door, she
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alerted Joshua. Then she grabbed the gun with both hands and struggled
with the assailant, trying to keep him from getting further inside. She
managed to push him out the door, and he fell over a propane tank.
Carmelita also stumbled outside, and at that point she saw Titus’s face
because his bandana had come off and Tom C.’s porch light was on.
Titus still held the shotgun, so Carmelita headed for cover in her RV.
When she was on the outside steps leading to the door, she turned and saw
Titus pointing his gun at her kitchen window and tracking the figure of
Joshua as he moved to the back of the vehicle. After Carmelita stepped
through the door into the RV, a shot was fired, and Joshua screamed. He
spun around and grabbed his face, covering his injury. Carmelita gave him a
blanket to staunch the bleeding. Then she realized Titus was back in the RV,
and she was temporarily too stunned to move as Titus said something to
Joshua. Joshua spit out “a pretty big piece of just flesh and blood particles,
pellets and everything” before saying something back. Then Titus fled, and
Carmelita followed until he disappeared down the hill and the light went off
in Chelsea’s mobile home. Carmelita returned to Joshua and called 911.
Meanwhile, Tom C.’s next door neighbor, Ms. N., heard the gunshot
and pleas for help. She was standing outside her house when a man
approached her while carrying a shotgun. Ms. N. recognized Titus, who she
knew well. He asked her for a ride, telling her something like “[t]hey want to
call me a liar, I’ll shoot all of them over there.” Then they heard sirens, Titus
asked for a way out, and Ms. N. told him how to get away.
Officers from the Sheriff’s department arrived at Tom C.’s property at
about 3:57 a.m. on the morning of January 6, where they were met by a
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frantic Carmelita who reported that Titus shot Joshua.1 The officers
obtained medical assistance for Joshua and arranged for a relative to pick up
Carmelita, but they did not have the resources to conduct an immediate
widespread search for Titus. Subsequently, officers obtained a warrant to
access location data for Titus’s phone. On January 25, 2021, Titus was
arrested at a Wal-Mart parking lot.
Joshua spent nine days in the hospital, followed by several months of
outpatient treatment from multiple doctors, including eye and brain
specialists. His injuries include a scar that crosses his entire face, other scars
on his face caused by pellets, a sunken eye, loss of vision in that eye, and
seizures that affect cognition. In the immediate aftermath of the shooting,
the seizures were frequent and severe. At the time of trial more than a year
later, they occurred once every couple of weeks.
B. The Defense Case
Titus, the sole defense witness, confirmed that he was living with
Chelsea C. in January 2021, but testified that he did not know Carmelita R.
well, and that he did not spend much time with Joshua S., although he
considered Joshua a friend. The two men had first met before Titus went to
prison in 2011 for committing burglary and assault with a deadly weapon.
Titus testified that he was released from prison in September 2020 and met
Chelsea the following month.
Titus recalled that on January 5, 2021, he spent the day working at a
construction job, stopped at a store on the way home to purchase jewelry for
Chelsea, and then went home and got engaged. Titus spent the remainder of
that night with Chelsea’s family before they went to bed in Chelsea’s trailer
1 When Carmelita identified Titus as the assailant, she referred to him
by his nickname, which is “Beans.”
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at around 2:00 or 3:00 a.m. Later, on the morning of January 6, Titus was
getting ready for work when his brother called to say that he had heard Titus
shot someone in the yard the previous night and that the police were looking
for him. This was “news” to Titus and he “panicked.” He called the tribal
police and Sherriff’s office and waited for two days for somebody to come and
find him at Chelsea’s home. Then he left to go stay with family because he
did not want to get Chelsea in trouble and because he wanted to see an uncle
who was dying. Titus denied shooting Joshua and testified that he was
innocent of all charges against him. He also denied going up to Ms. N.’s
house on the morning of the shooting.
Titus testified that in January 2021, he was in compliance with a term
of his parole that precluded him from possessing a firearm. He recalled one
day when he was outside Chelsea’s home chopping wood, Joshua came down
and tried to show him his gun, but he told Joshua that he could not be around
“that” or he would be sent to prison, and he asked Joshua “to get out of the
yard.” That was the only time Joshua tried to show him a gun. Titus
testified that he did not even know he had been accused of stealing Joshua’s
gun until he was brought to court.
Titus admitted under cross-examination that his prior convictions for
residential burglary and assault involved kicking down somebody’s door and
going into their house with a shotgun. The prosecutor asked if it was true
that on the same day Titus committed those prior offenses, he fired his
shotgun at another person. Titus denied the allegation, testifying that the
gun had accidentally discharged without him firing a shot. Titus told the
jury that he had never pointed a shotgun at another person, explaining, “I
was taught, if you point a gun at somebody, use it, and that’s something I
don’t do.”
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II. Trial Proceedings
The evidence summarized above was presented at Titus’s March 2022
jury trial. On March 16, the jury convicted Titus of the following offenses:
attempted murder (Pen. Code, §§ 187, subd. (a), 664;2 count 1); aggravated
mayhem (§ 205; count 2); burglary (§ 459; count 3); two counts of assault with
a firearm (§ 245, subd. (a)(2); counts 4 & 6); and shooting at an inhabited
dwelling (§ 246; count 5). The jury also found true allegations that Titus
personally and intentionally discharged a firearm, causing great bodily injury
(§ 12022.53, subd. (d); counts 1 & 2), personally used a firearm (§ 12022.5,
subd. (a); counts 3 & 4), and caused great bodily injury (§ 12022.7, subd. (a);
counts 4 & 5). The trial court found that additional enhancement allegations
for a prior strike conviction (§§ 667, subd. (b)–(i), 1170.12, subd. (c)(1)) and a
prior serious felony conviction (§ 667, subd. (a)(1)) were true, based on
admissions Titus made while testifying at trial.
Titus was sentenced on April 12, 2022. The probation department
recommended that the trial court impose an aggregate prison sentence of 43
years, 8 months to life plus life in prison. Confusingly, the report sets out
proposed terms for each conviction and enhancement, which do not appear to
coincide with department’s proposed aggregate sentence.
The trial judge stated that he considered the probation report and
intended to follow the department’s recommendation but with modifications,
and also stated that determinate terms would be doubled due to the prior
strike. The court’s tentative decision was to impose an aggregate sentence of
50 years to life, plus 32 years, 8 months in prison. Using mayhem (count 2)
as the base term, the court intended to impose a sentence of 25 years to life
plus a consecutive term of 25 years to life for personal discharge of a weapon
2 Statutory references are to the Penal Code.
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causing great bodily injury. The court then outlined the following sentences
for the subordinate offenses: for attempted murder (count 1), a consecutive
term of 14 years and a stayed term of 25 years to life for the enhancement;
for burglary (count 3), a consecutive term of 2 years, 8 months plus a
consecutive term of 2 years, 8 months for the weapon enhancement; for
assault against Joshua (count 4), a concurrent 6-year term plus a stayed 4-
year term for personal use of a firearm and a stayed 3-year term for causing
great bodily injury; for shooting at a dwelling (count 5), a consecutive term of
3 years, 4 months plus a consecutive 3-year term for causing great bodily
injury; for the assault against Carmelita (count 6), a consecutive 2-year term;
and for the prior serious felony enhancement, a consecutive 5 year term.
The prosecutor agreed with the court’s tentative sentence, after which
Joshua’s mother made a statement to the court about the impact of Titus’s
conduct. The defense made one objection, arguing that the prior strike and
prior conviction allegations had been bifurcated and thus had not been
proven, to which the court responded that Titus himself admitted the prior
convictions during his testimony.
The defense submitted letters of support from Titus’s mother as well as
a letter Titus wrote. In addition, Titus made the following statement directly
to Joshua’s mother: “. . . I am sorry Josh got shot. I mean, but the truth’s
going to come out later. And I just want you to know it wasn’t me, and the
truth is going to come out. And let Josh know I am sorry for whatever
happened to him, but he is going to know what is going to happen. The truth
will come out. I just wanted you to know that.”
After the matter was submitted, the court noted that Titus had
maintained his innocence but opined that the jury concluded otherwise
because two witnesses had identified him. Beyond that, the court observed
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that this was a “horrible crime,” and pronounced that its tentative sentence
would be the sentence imposed on Titus.
DISCUSSION
I. Jury Instruction Regarding Simple Mayhem Was Not Required
Titus contends the trial court violated a sua sponte duty to instruct the
jury regarding simple mayhem as a lesser necessarily included offense of
aggravated mayhem.
As noted, the jury convicted Titus of violating section 205, which states:
“A person is guilty of aggravated mayhem when he or she unlawfully, under
circumstances manifesting extreme indifference to the physical or
psychological well-being of another person, intentionally causes permanent
disability or disfigurement of another human being or deprives a human
being of a limb, organ, or member of his or her body.” Simple mayhem is
defined in section 203, which states: “Every person who unlawfully and
maliciously deprives a human being of a member of his body, or disables,
disfigures, or renders it useless, or cuts or disables the tongue, or puts out an
eye, or slits the nose, ear, or lip, is guilty of mayhem.” Section 203 is a
necessarily included offense of aggravated mayhem as defined in section 205.
(People v. Robinson (2014) 232 Cal.App.4th 69, 79.)
But the trial court’s sua sponte instructional duty does not extend
automatically to all necessarily included offenses. “ ‘A trial court has a sua
sponte duty to “instruct on a lesser offense necessarily included in the
charged offense if there is substantial evidence the defendant is guilty only of
the lesser.” [Citation.] Substantial evidence in this context is evidence from
which a reasonable jury could conclude that the defendant committed the
lesser, but not the greater, offense. “The rule’s purpose is . . . to assure, in
the interest of justice, the most accurate possible verdict encompassed by the
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charge and supported by the evidence.” [Citation.] In light of this purpose,
the court need instruct the jury on a lesser included offense only “[w]hen
there is substantial evidence that an element of the charged offense is
missing, but that the accused is guilty of” the lesser offense.’ ” (People v.
Landry (2016) 2 Cal.5th 52, 96, italics omitted.)
Thus, to prevail on his claim of error, Titus must show there is
substantial evidence from which a reasonable jury could conclude he
committed simple mayhem, but not aggravated mayhem. A substantive
distinction between these offenses pertains to the element of intent. (People
v. Villegas (2001) 92 Cal.App.4th 1217, 1226; see also People v. Newby (2008)
167 Cal.App.4th 1341, 1347–1348.) Simple mayhem in violation of section
203 “ ‘is a general intent crime. [Citations.] The necessary intent for
mayhem is inferable from the types of injuries resulting from intentional
acts.’ ” (Villegas, at p. 1226.) Aggravated mayhem, by contrast, “requires the
specific intent to cause the maiming injury.” (People v. Assad (2010) 189
Cal.App.4th 187, 195; see also People v. Ferrell (1990) 218 Cal.App.3d 828,
833 (Ferrell).) “ ‘Furthermore, specific intent to maim may not be inferred
solely from evidence that the injury inflicted actually constitutes mayhem;
instead, there must be other facts and circumstances which support an
inference of intent to maim rather than to attack indiscriminately.’ ” (People
v. Park (2003) 112 Cal.App.4th 61, 64.)
In this case, the prosecution presented evidence that Titus specifically
intended to inflict a disfiguring injury on Joshua; Titus accosted Joshua with
a shotgun in the early morning hours while Joshua was in bed, and after
Carmelita pushed him out the door, he tracked Joshua’s movements through
a window and shot him in the face. There was no evidence of an unplanned
or indiscriminate attack. The defense disputed that Titus was the shooter
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but elicited no evidence from him or any other witness to support a finding
that Joshua’s maiming was unintended or that shooting him in the face was
an indiscriminate act.
At trial, the defense argued to the jury that the two specific intents
required to commit attempted murder and aggravated mayhem “are
incompatible with each other,” which is simply not true. (See e.g., Ferrell,
supra, 218 Cal.App.3d at pp. 833–834.) Titus does not repeat the argument
on appeal, but contends instead that it is permissible for a jury to find that a
defendant intended to kill without being convinced that he also intended to
maim. We need not test the logic of this argument as it misses the mark.
The sua sponte duty to instruct arises only when there is evidence to support
a finding that the defendant intended to kill but not to maim, and we find
none here.
Titus also expresses the view that evidence of his specific intent to
maim was “not overwhelming,” positing that because he fired only a single
shot rather than “a concentrated barrage of controlled firepower” the jury
could rationally have concluded that he intended to kill Joshua but not maim
him. We are not persuaded by this reasoning, which ignores undisputed
evidence that the person who shot Joshua tracked his movements through a
window before firing a single shot that hit Joshua in the face. This was a
controlled action, and the fact that injury was inflicted with one bullet rather
than a barrage reinforces the finding that the shooter specifically intended to
maim. (See Ferrell, supra, 218 Cal.App.3d at pp. 835–836 [single gunshot to
the victim’s neck supported inference of intent to kill, and if the victim did
not die, to disable her permanently]; compare People v. Lee (1990) 220
Cal.App.3d 320, 326 [evidence showed “no more than a sudden,
indiscriminate, and unfocused battering of [victim’s] body”].)
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Finally, Titus contends he was prejudiced by the failure to instruct the
jury regarding simple mayhem. Since Titus fails to prove the instruction was
required, his prejudice argument necessarily fails. Moreover, Titus invokes
the wrong standard of prejudice to the extent he contends the erroneous
failure to sua sponte instruct on a lesser included offense violates federal due
process. “[I]n a noncapital case, error in failing sua sponte to instruct, or to
instruct fully, on all lesser included offenses and theories thereof which are
supported by the evidence must be reviewed for prejudice exclusively under
[People v. Watson (1956) 46 Cal.2d 818].” (People v. Breverman (1998) 19
Cal.4th 142, 178.) Here, Titus fails to carry his burden of proving prejudice
for the same reason he fails to prove the underlying error. He does not
identify evidence to support a finding that Joshua’s disfiguring injury was
anything other than intentionally inflicted. Thus, it is not reasonably
probable that Titus would have obtained a more favorable outcome if the jury
had been given the option to convict him of simple mayhem.
II. Sentencing Errors Warranting Remand
A. Section 654
Titus contends the trial court violated section 654 by imposing
consecutive sentences for attempted murder (count 1), mayhem (count 2), and
shooting at an inhabited dwelling (count 5). The People agree that
consecutive sentences should not have been imposed for attempted murder
and aggravated mayhem, but disagree that the consecutive sentence for
shooting at an inhabited dwelling violates section 654. Although these issues
were not raised in the trial court, errors in the applicability of section 654
may be raised for the first time on appeal. (People v. Hester (2000) 22 Cal.4th
290, 295.)
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Section 654 precludes punishing a defendant twice for “[a]n act or
omission that is punishable in different ways by different provisions of law.”
(§ 654, subd. (a).) “The purpose of section 654 is to prevent multiple
punishment for a single act or omission, even though that act or omission
violates more than one statute and thus constitutes more than one crime.
Although the distinct crimes may be charged in separate counts and may
result in multiple verdicts of guilt, the trial court may impose sentence for
only one offense—the one carrying the highest punishment.” (People v. Liu
(1996) 46 Cal.App.4th 1119, 1135, questioned on another ground People v.
Kopp (2019) 38 Cal.App.5th 47, 85.)
Section 654 also precludes multiple punishments for two offenses that
arise from an indivisible course of conduct; if two crimes arose from the same
act or series of acts constituting an indivisible course of conduct, multiple
punishment is prohibited. (People v. Sok (2010) 181 Cal.App.4th 88, 99
(Sok).) The pertinent inquiry is not whether two crimes were part of the
same course of conduct but whether that course of conduct is indivisible,
because the defendant had only one criminal objective, or divisible because
the defendant had more than one criminal objective. (Neal v. State of
California (1960) 55 Cal.2d 11, 19–20, disapproved on other ground in People
v. Correa (2012) 54 Cal.4th 331, 334.)
In this case, we agree with and accept the parties’ stipulation that
section 654 precludes imposing multiple punishment for attempted murder
and aggravated mayhem. Both crimes were accomplished by the same act of
shooting Joshua in the face. (People v. Corpening (2016) 2 Cal.5th 307, 309
[when same action completes the actus rea for two offenses, section 654
precludes double punishment].) And although there is evidence that Titus
harbored different intents in committing these two crimes, the intent to
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disfigure Joshua was incidental to the intent to kill him. (See e.g. People v.
Mitchell (2016) 4 Cal.App.5th 349, 353 [armed assault with scissors was
incidental to and facilitated armed robbery with scissors].) Thus, the trial
court erred by imposing consecutive sentences for attempted murder and
aggravated mayhem.
Titus argues that the same analysis applies to his conviction for
shooting at an inhabited dwelling. The People do not dispute that the same
criminal act that constituted mayhem and attempted murder also constituted
shooting at an inhabited dwelling. But they argue separate punishment for
shooting at a dwelling is authorized pursuant to the multiple victim
exception to section 654’s prohibition against dual punishment because
Carmelita and Joshua were both victims of this offense. Under the multiple
victim exception, “ ‘even though a defendant entertains but a single principal
objective during an indivisible course of conduct, he may be convicted and
punished for each crime of violence committed against a different victim.’ ”
(People v. Garcia (1995) 32 Cal.App.4th 1756, 1781.) “An assailant’s greater
culpability for intending or risking harm to more than one person precludes
application of section 654.” (People v. Felix (2009) 172 Cal.App.4th 1618,
1631 (Felix).)
Titus contends the record does not support applying the multiple victim
exception to his offense of shooting at an inhabited dwelling, offering two
erroneous reasons. First, he argues that Joshua was alone in the RV when
he was shot. Titus’s citations to the record do not support this contention.
He also overlooks that Carmelita testified that she was on the steps inside
the RV when Titus fired the gun through her kitchen window. (See Felix,
supra, 172 Cal.App.4th at p. 1631 [defendant need not be aware of number of
people in the dwelling to be punished separately for each victim].) Second,
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Titus argues that the charges in the information pertaining to attempted
murder, aggravated mayhem, and shooting at a dwelling all “name but one
victim, Joshua.” In fact, while Joshua is identified as the victim of the
attempted murder and mayhem counts, the count 5 charge for shooting at an
inhabited dwelling does not identify a specific victim.
In his reply brief, Titus argues this case is analogous to People v.
Cardenas (2015) 239 Cal.App.4th 220. The Cardenas defendant was
convicted of robbery and burglary based on evidence he broke into a
residence, physically attacked Ms. Senger, an elderly woman who had been
asleep in her bed, took her property, and escaped out a bedroom window just
as Senger’s son-in-law was unlocking the front door of the home. (Id. at
pp. 224–225.) Because both offenses involved a single criminal objective and
indivisible conduct, section 654 required the trial court to stay the
defendant’s sentence for burglary, the appellate court found. (Id. at pp. 229–
233.) In reaching this conclusion, the court found the multiple victim
exception did not apply because that exception is limited to cases in which
the defendant’s otherwise indivisible course of conduct “results in crimes of
violence against multiple victims.” (Id. at p. 230.) Burglary does not
necessarily involve an act of violence, the court found, and the record showed
that Senger was the only victim of violent offenses committed by the
defendant in that case. Specifically, the trial evidence showed that Senger’s
son-in-law was not actually in the house during the burglary, but even if he
had been, the great bodily injury sentence enhancements pertained
exclusively to Senger. Absent authority establishing that burglary is “a
crime of violence for purposes of the multiple victim exception,” and “without
an allegation or finding by the trier of fact to support that characterization,”
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the Cardenas court concluded that the burglary charge had to be stayed
under section 654. (Id. at p. 232.)
In contrast to Cardenas, the issue in this case is not whether the
multiple victim exception applies to Titus’s burglary conviction, but whether
it applies to the crime of shooting at an inhabited dwelling. Pertinent
authority establishes that this offense necessarily involves an act of violence.
(Felix, supra, 172 Cal.App.4th at pp. 1630–1631; People v. Anderson (1990)
221 Cal.App.3d 331, 338–339.) Moreover, while there was only one victim of
the violent offenses committed by the Cardenas defendant, there is evidence
in this record that a second victim was inside the RV when Titus committed
this offense. “ ‘As long as each violent crime involves at least one different
victim, section 654’s prohibition against multiple punishment is not
applicable.’ ” (Anderson, at p. 338.) In this case, Joshua was the only victim
of the attempted murder and aggravated mayhem offenses, but there is
substantial evidence that Carmelita was an additional victim of the violent
offense of shooting into an inhabited dwelling. Thus, the consecutive
sentence for this later offense does not violate section 654.
By separate argument, Titus contends that even section 654 does not
apply to shooting into an inhabited dwelling, it does apply to the
enhancement attached to this offense for “personally inflict[ing] great bodily
injury on any person other than an accomplice in the commission of a felony”
in violation of section 12022.7, subdivision (a) (section 12022.7(a)). Titus
reasons that the additional term for this enhancement constitutes
impermissible double punishment because the court imposed an additional
term for the section 12022.7(a) enhancement attached the aggravated
mayhem conviction, which is based on the same exact injury. However,
section 654 does not apply to sentence enhancements based on a single injury
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when those enhancements are attached to substantive offenses that are
covered by the multiple victim exception to section 654. (People v. Oates
(2004) 32 Cal.4th 1048, 1066; see also People v. Reyes-Tornero (2016)
4 Cal.App.5th 368, 378–379 [following Oates].) In this situation, the
enhancements “ ‘simply follow from’ ” the defendant’s substantive convictions
and “ ‘do not constitute separate crimes or offenses, but simply are the basis
for the imposition of additional punishment for the underlying substantive
offense.’ ” (Oates, at p. 1066; see Reyes-Tornero, at pp. 379 & 380.) Thus,
because section 654 does not apply to the Titus’s conviction for shooting at an
inhabited dwelling, it does not apply to the related section 12022.7(a)
enhancement.
The fact remains that Titus’s sentence must be modified because the
consecutive sentences for aggravated mayhem and attempted murder violate
section 654. Although a section 654 error does not always warrant a remand,
the People concede that this case should be remanded, perhaps because
multiple other errors resulted in a miscalculation of Titus’s sentence. We
note also that when Titus was sentenced, section 654 required the trial court
to impose punishment for the crime providing for the longest term of
potential punishment, but that requirement has since been eliminated by
amendment. Titus is entitled to the ameliorative benefit of this amendment,
as the judgment is not yet final. (See In re Estrada (1965) 63 Cal.2d 740.)
B. Other Sentencing Issues
The People concede the following additional errors with respect to
Titus’s sentence: The consecutive term for the section 12022.7(a)
enhancement attached to the shooting at an inhabited dwelling offense
should be one year, not three years. (§ 1170.1, subd. (a).) The base term
sentence for aggravated mayhem (as distinguished from the enhancement for
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that crime) should be 14 years to life, rather than 25 years to life. (§§ 3046,
subd. (a)(1), 667, subd. (e)(1), 1170.12, subd. (c)(1).) And the section 12022.5
enhancement for burglary should be 1 year, 4 months, rather than 2 years,
8 months. (Sok, supra, 181 Cal.App.4th at p. 93 [enhancements are not
doubled when defendant suffered one prior strike].) The trial court is
directed to address these, and any other matters raised by the parties, at
resentencing. (People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 [“the full
resentencing rule allows a court to revisit all prior sentencing decisions when
resentencing a defendant”]; accord, People v. Buycks (2018) 5 Cal.5th 857,
893.)
DISPOSITION
The judgment is reversed, and the matter remanded for resentencing.
Following resentencing, the trial court is directed to prepare an amended
abstract of judgment, which shall be forwarded to the Department of
Corrections and Rehabilitation. The judgment is otherwise affirmed.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
PETROU, J.
People v. Titus (A164999)
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