Opinion
A162848
09-20-2022
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND JONES, Defendant and Appellant.
NOT TO BE PUBLISHED
(Mendocino County Super. Ct. Nos. SCUKCRCR2020343211, SCUKCRCR2020343291)
Richman, Acting P. J.
After an incident in which defendant Raymond Jones repeatedly punched his girlfriend, strangled her until she lost consciousness, swung a baseball bat near her leaving a hole in the wall, and threatened to kill her if she told the police, he was convicted by a jury of various crimes, including assault with a deadly weapon, battery with serious bodily injury, dissuading a witness by force or fear, and corporal injury to a spouse. Jones makes four arguments on appeal, that: (1) substantial evidence does not support his conviction for assault with a deadly weapon; (2) the sentences on certain of his convictions should have been stayed under Penal Code section 654 ; (3) his due process rights were violated by the prosecution's trial brief's discussion of his maximum sentencing exposure; and (4) five-year strike enhancements should not have been imposed on each count for which he received an indeterminate sentence. We agree that sentence on either count 2 or count 4 must be stayed pursuant to section 654, but otherwise affirm.
Further undesignated statutory references are to the Penal Code.
BACKGROUND
M.C. was dating Jones in February of 2020. On the evening of February 10, they returned home after running errands, used methamphetamine, and got into an argument. Jones punched M.C. in the face and head with a closed fist approximately 10 to 15 times, striking both sides of her face, her eye area, her nose, and her jaw. Jones then grabbed a baseball bat and swung it, but "instead of hitting me, he hit the wall with it." M.C. was about 12 inches away. The bat hit the wall outside M.C.'s bedroom door, leaving a "sizable" hole in the wall. When M.C. saw Jones begin to swing the bat, she was "very scared," thought the bat was going to hit her, and "thought he was going to kill me." M.C. ran into her bedroom, where Jones followed her, "grabbed [her] by the throat, and picked [her] up off the ground, and kind of threw [her] around the bedroom." Jones again punched M.C., and put his hands on her neck and applied pressure, choking her to the point she could not breathe. He again "picked [her] up off the ground, and kind of threw [her] around, and threw [her] up against the wall." M.C. lost consciousness once or twice. When she came to, she was on the ground between the bed and nightstand. She estimated Jones struck her with a closed fist approximately 20 times in total, and that the incident lasted "[p]robably 5 to 10 minutes at the most, but it seemed like forever."
After the incident, Jones told M.C. "that [she] shouldn't have made him hit [her]," and that he would kill her if she called the police. She was scared and thought he "definitely" had the capacity to kill her. Jones then "got remorseful, and started apologizing," and told M.C. that he loved her. M.C. eventually fell asleep on the bed.
The next morning, M.C and Jones ran errands together. After they separated, M.C. walked home alone, where she called the police. When they arrived, she told them what happened the previous night, and a body camera recording of her statement was later played for the jury. M.C. went to the Adventist Health hospital in Ukiah, where she was examined by Dr. Duncan Johnson. She had bruising around her eyes and lips and redness around her neck, and she complained of pain in her face, neck, and back. Dr. Johnson concluded M.C.'s physical condition was consistent with having been assaulted.
On February 12, police located Jones in his vehicle and placed him under arrest. They found a pink baseball bat inside the vehicle and a baggie containing 0.7 grams of methamphetamine in Jones's right front pocket. As officers put Jones into the patrol car, he kicked the rear passenger door five or six times, causing approximately $4,000 in damage.
On April 23, the Mendocino County District Attorney filed an information charging Jones with assault with a deadly weapon (§ 245, subd. (a)(1)) (count 1) "to wit, [a] baseball bat"; battery with serious bodily injury (§ 243, subd. (d)) (count 2) "upon the person of [M.C.] by causing her to lose consciousness by strangulation"; dissuading a witness by force or fear (§ 136.1, subd. (c)(1)) (count 3); corporal injury to a spouse (§ 273.5, subd. (a)) (count 4) "by punching [M.C.] in the face and causing facial bruising"; vandalism (§ 594) (count 5); and misdemeanor possession of methamphetamine (Health &Saf. Code, § 11377, subd. (a)) (count 6). The information alleged a great bodily injury enhancement with respect to count 2 (§ 12022.7, subd. (a)), two prior strikes (§§ 667.5, 1170.12), and two prior prison convictions (§ 667, subd. (a)).
On July 2, the jury found Jones guilty as charged and found true the bodily injury enhancement with respect to count 2. On July 20, after Jones waived his right to a jury trial, the trial court found true the prior strike and prior prison conviction allegations.
On June 3, 2021, the trial court sentenced Jones to the aggravated term of 4 years on count 4, doubled to eight years because of the strike, with a consecutive sentence of eight months, doubled to sixteen months because of the prior strike, on count 5. The trial court then imposed two consecutive five-year enhancements for the prior serious or violent felony convictions, for a total determinate sentence of 19 years, 4 months. The trial court imposed a 25 year to life indeterminate term on each of counts 1, 2, and 3, with two consecutive five-year enhancements on each count, for a total indeterminate term of 105 years to life.
Jones filed a notice of appeal.
DISCUSSION
Jones's Assault Conviction Does Not Require Intent to Cause Injury
Jones first argues that he cannot be convicted of assault with a deadly weapon because the fact that he missed M.C. with the bat and hit the wall instead means he did not intend to hit her.
The jury was instructed, pursuant to CALCRIM No. 875, that the elements of assault with a deadly weapon are: (1) "The defendant did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person;" (2) "The defendant did that act willfully;" (3) "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 the application of force to someone;" and (4) "When the defendant acted, he had the present ability to apply force with a deadly weapon other than a firearm to a person." (See CALCRIM No. 875.)
The instructions further provided that:
"Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
"The People are not required to prove that the defendant actually touched someone.
"The People are not required to prove that the defendant actually intended to use force against someone when he acted."
" 'In reviewing the sufficiency of the evidence to support a criminal conviction, we review the record" 'in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, 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.' [Citations.]" We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence.' ([People v.] Pham [(2009) 180 Cal.App.4th [919,] 924-925.)" (People v. Sommer (2021) 61 Cal.App.5th 696, 702.)
To begin with, although it was not required, substantial evidence amply supports the conclusion that Jones intended to hit M.C. with the baseball bat. Jones swung the bat during a 5 to 10-minute long attack on M.C. that included punching her in the face and strangling her until she lost consciousness. The bat struck the wall only 12 inches from her. And M.C. testified that she "thought [Jones] was going to beat" her with the bat and was afraid that "he was going to kill me." The jury could permissibly conclude from this evidence that Jones swung the bat intending to hit M.C. and hit the wall instead.
But even if Jones did not intend to hit M.C. with the bat, substantial evidence supports his conviction for assault with a deadly weapon, as, for example, in People v. Golde (2008) 163 Cal.App.4th 101, 121 (Golde). There defendant was driving a car with the victim inside when she jumped out and yelled "He's going to kill me." (Id. at pp. 105-106.) Defendant then accelerated toward the victim at about 15 miles per hour, hitting her with the front of the car. (Id. at p. 109.) Defendant again accelerated toward the victim three times or four times as she moved out of the way. (Ibid.) The Court of Appeal rejected defendant's argument that he could not be guilty of assault because he did not hit the victim, and therefore did not have the requisite mental state:
"The mental element for the assault charge is that 'assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.' (People v. Williams (2001) 26 Cal.4th 779, 790.) 'The mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery. Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm .... The evidence must only demonstrate that the defendant willfully or purposefully attempted a "violent injury" or "the least touching," i.e., "any wrongful act committed by means of physical force against the person of another." [Citation.] In other words, "[t]he use of the described force is what counts, not the intent with which same is employed." [Citation.] Because the offensive or dangerous character of the defendant's conduct, by virtue of its nature, contemplates such injury, a general criminal intent to commit the act suffices to establish the requisite mental state. [Citation.]' (People v. Colantuono (1994) 7 Cal.4th 206, 214-215.) [¶] Thus, there is no merit to defendant's argument that if he wanted to hit the victim, he could have hit her, and therefore the fact that he did not hit her means he had no intent to hit her. Under the aforementioned cases of our Supreme Court, defendant did not have to intend to hit the victim to be guilty of assault." (Golde, supra, 163 Cal.App.4th at pp. 108-109.)
Similarly here. The fact that Jones did not hit M.C. with the bat does not mean he lacked the intent to hit her, nor does it mean that he was not "aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone." (Golde, supra, 163 Cal.App.4th at p. 121.)
Jones Was Properly Convicted on Counts 1, 2, and 4
Jones argues that he cannot be separately convicted on counts 1, 2, and 4, because the actions underlying each offense constitute "ongoing assaultive conduct over a short period of time." We disagree. As we explained in People v. Deegan (2016) 247 Cal.App.4th 532, 541:"' "In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. 'In California, a single act or course of conduct by a defendant can lead to convictions "of any number of the offenses charged." '"' (People v. Correa (2012) 54 Cal.4th 331, 337; see § 954.)"
Jones does not discuss this general rule, section 954, or cases applying it. Instead, he relies heavily on People v. Oppenheimer (1909) 156 Cal. 733 (Oppenheimer), at oral argument describing the setting here as "straight up Oppenheimer." By no means.
Defendant Oppenheimer, who was serving a life sentence in prison, was charged with assault with a deadly weapon, which if he were convicted, would result in the death penalty. The crime involved defendant having taken an iron window weight from his cell and escaping from it; he then went to the prison dining room and attacked another inmate who was cutting bread by hitting the inmate on the head with the window weight, and then grabbed the knife from the inmate and stabbed him several times.
(Oppenheimer, at pp. 736-737.) Defendant was convicted of a single count of assault with a deadly weapon. On appeal defendant argued the information was insufficient in failing to specify the nature of the deadly weapon used. (Id. at pp. 739-740.) Our Supreme Court rejected the argument: "We think it is manifest that there was but a single assault shown by this evidence .... The mere fact that two weapons are used does not necessarily show two assaults.... The evidence . . . in this case tended to show one continuous transaction, one assault in which two weapons were used." (Id. at p. 740.)
Oppenheimer is plainly inapposite; not just because of the unusual posture of the case. It did not consider or discuss section 954, or the rules regarding a continuous course of conduct, or independent criminal objectives. And the fact that an attack using two weapons can be characterized as a single assault does not support the conclusion that two or more separate and distinct attacks must be characterized as a single assault.
Jones's reliance on People v. Mitchell (1940) 40 Cal.App.2d 204 (Mitchell) is similarly misplaced. There, the defendant attacked the victim by hitting him on the head, and a very short time later attacked the victim again, using a beer bottle to strike the victim on the side of the head. (Id. at p. 207.) Defendant argued his subsequent conviction for assault violated the double jeopardy clause of the California Constitution, because two assaults had taken place and it was impossible to determine which one he had been found guilty of. (Id. at p. 210.) Mitchell, citing Oppenheimer, rejected this contention, finding "there was in fact but a single assault." (Mitchell, supra, 40 Cal.App.2d at p. 211.) "The evidence concerning the blow struck by [the defendant] with his fist was merely testimony regarding a portion of a transaction which culminated in the assault with the bottle.... There was but one assault, although two blows, one with the fist and one with a bottle, were struck." (Ibid.)
Mitchell is also inapposite. Jones was charged with three different crimes each based on different conduct. This case does not concern double jeopardy, or any issue of unanimity. And again, the fact that a defendant who inflicts more than one blow can be charged with and convicted of a single assault does not compel the conclusion that multiple attacks must be characterized as a single assault. In sum, we conclude that Jones was properly convicted of counts 1, 2, and 4.
The Sentence on Either Count 2 or Count 4 Must Be Stayed Under Section 654
At the time of sentencing, section 654, subdivision (a) provided that "[a]n 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, but in no case shall the act or omission be punished under more than one provision."
Effective January 1, 2022, section 654, subdivision (a) provides that "[a]n act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision."
Jones next argues that his sentence on counts 1 and 4 must be stayed under section 654 because the acts supporting his convictions on counts 1, 2, and 4 were part of a continuous course of conduct. The Attorney General argues that the acts underlying the count 1 and count 4 convictions are distinct, but concedes that the acts underlying count 2 and count 4 are not, and that one or the other should be stayed under section 654. We agree with the Attorney General, and accept his concession.
The Attorney General's brief states that the sentence on count 2 must be stayed, but at oral argument counsel clarified that the Attorney General's position is that the sentence on either count 2 or count 4 must be stayed.
Again, People v. Deegan, supra, 247 Cal.App.4th at pp. 541-542 is apt:" 'Section 654 bars separate punishment for multiple offenses arising out of a single, indivisible course of action.' (People v. Neely (2009) 176 Cal.App.4th 787, 800.) Its purpose is 'to ensure that a defendant's punishment will be commensurate with his culpability.' (Correa, at p. 341.)
"' "If a course of criminal conduct causes the commission of more than one offense, each of which can be committed without committing any other, the applicability of section 654 will depend upon whether a separate and distinct act can be established as the basis of each conviction, or whether a single act has been so committed that more than one statute has been violated. If only a single act is charged as the basis of the multiple convictions, only one conviction can be affirmed, notwithstanding that the offenses are not necessarily included offenses. It is the singleness of the act and not of the offense that is determinative." (People v. Knowles (1950) 35 Cal.2d 175, 187.) [¶] The "singleness of the act," however, is no longer the sole test of the applicability of section 654." 'Section 654 has been applied not only where there was but one "act" in the ordinary sense . . . but also where a course of conduct violated more than one statute . . . within the meaning of section 654.' [People v. Brown (1958) 49 Cal.2d 577, 591.] [¶] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19; italics added.)' (People v. Beamon (1973) 8 Cal.3d 625, 637, fn. omitted, disapproved on other grounds by People v. Mendoza (2000) 23 Cal.4th 896.)" (People v. Deegan, supra, 247 Cal.App.4th at pp. 541-542.)
"Whether multiple convictions are based upon a single act is determined by examining the facts of the case." (People v. Mesa (2012) 54 Cal.4th 191, 196.) Intent and objective are also "factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense." (People v. Jackson (2016) 1 Cal.5th 269, 354.) A trial court's imposition of multiple sentences must be sustained on appeal so long as its factual findings, express or implied, of multiple acts or multiple intents and objectives are supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Cruz (2020) 46 Cal.App.5th 715, 737.) Accordingly, we review the trial court's imposition of multiple sentences" 'in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.'" (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378.)
If the trial court does not stay a sentence pursuant to section 654, and offers no factual basis for its decision, we presume the court found that the defendant harbored a separate intent and objective for each offense. (People v. Jones (2002) 103 Cal.App.4th 1139, 1147.) Here, there was no discussion at sentencing as to whether section 654 applied to counts 1, 2, or 4. Accordingly, we must affirm the sentence if an implied finding that section 654 does not apply is supported by substantial evidence. (See People v. Osband, supra, 13 Cal.4th at pp. 730-731.)
Jones argues that his criminal intent and objective for each of counts 1, 2, and 4 was the same, namely, to "engage in assaultive conduct on the victim." The Attorney General argues that the intents behind counts 1 and 4 were distinct, i.e., the intent to use a deadly weapon against M.C., and the intent to inflict great bodily injury on her face and neck.
People v. Nubla (1999) 74 Cal.App.4th 719 (Nubla) is instructive.
There, the defendant "put his hand over [the victim's] mouth and pushed her face down onto the bed, causing her nose to bleed. Appellant pushed something cold and hard into the back of [the victim']s head. He then turned her face-up and put a gun in her mouth, cutting her lip and chipping her tooth." (Id. at p. 723.) Defendant was convicted of assault with a deadly weapon (§ 245, subd. (b)), corporal injury on a spouse (§ 273.5), and false imprisonment (§ 236). (Nubla, at p. 723.) The trial court stayed the sentence on the false imprisonment count under section 654, but imposed separate sentences on the remaining two counts. (Nubla, at p. 730.) The Court of Appeal rejected the argument that separate punishment for assault with a deadly weapon and corporal injury to a spouse violated section 654:
"Appellant contends, however, that the court erred by imposing separate sentences on the offenses of assault with a deadly weapon and corporal injury to a spouse, claiming that both offenses were part of an indivisible course of conduct and thus subject to the limitations of Penal Code section 654.
"Whether the defendant entertained multiple criminal objectives is a factual question for the trial court, and its findings on this question will be upheld on appeal if there is any substantial evidence to sustain them. (People v. Akins [(1997)] 56 Cal.App.4th [331,] 339.) There is no question here but that appellant committed several acts of violence against his wife. He pushed her onto the bed, causing her nose to bleed. He pushed a gun into the back of her head. He turned her over and pushed the gun into her mouth. [¶] Appellant's offenses, although not sexual in nature, are somewhat analogous to sex offenses in that several similar but separate assaults occurred over a period of time. In connection with sex offenses it has been established that each sexual assault may be viewed as a separately punishable criminal act, notwithstanding that all the offenses arguably were done to obtain sexual gratification. The Supreme Court observed, 'that such a "broad and amorphous" view of the single "intent" or "objective" needed to trigger [section 654] would impermissibly "reward the defendant who has the greater criminal ambition with a lesser punishment." [Citation.] Rather, in keeping with the statute's purpose, the proper view [is] to recognize that a "defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act."' (People v. Harrison (1989) 48 Cal.3d 321, 335-336.) The court accordingly found it permissible to conclude that separately punishable acts had occurred when' "[n]one of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental" to any other.' (Id. at p. 336.)
"The same analysis, applied here, supports the trial court's ruling. Appellant's act of pushing his wife onto the bed and placing the gun against her head was not done as a means of pushing the gun into her mouth, did not facilitate that offense and was not incidental to that offense. The trial court was entitled to conclude that each act was separate for purposes of section 654." (Nubla, supra, 74 Cal.App.4th at pp. 730-731.)
Jones does not attempt to distinguish Nubla, but instead asks that we reject it.
So too here. Jones committed separate acts underlying counts 1 and 4. He swung a baseball bat at M.C., and then, in a separate room, punched her repeatedly in the face and head. Jones's swinging of the baseball bat did not facilitate his punching of M.C., nor was it incidental to those acts. On this record, the trial court could conclude that each act had a separate criminal intent and objective-for example, that Jones punched M.C. out of anger and to inflict injury, and that that he swung the baseball bat to kill M.C. or to psychologically terrorize her by showing her he had the capacity to do so. Substantial evidence supports the conclusion that the acts for counts 1 and 4 were separate for the purposes of section 654.
Count 2 is a different story. With respect to that count, the record does not support a finding of any separate criminal intent or objective. Jones repeatedly punched M.C. and strangled her until she lost consciousness, "at least once, maybe twice," as part of a continuous course of violence lasting some five to ten minutes. The intent required for both crimes was simply that the defendant acted "willfully." Nothing in the record suggests that Jones had any separate intent or objective for the strangulation as compared to the punches, and, as noted, the Attorney General concedes that there was no separate intent or objective underlying counts 2 and 4 and that sentence on one or the other must therefore be stayed under section 654. We agree with that concession, and accordingly, we will remand for the trial court to apply section 654 to counts 2 and 4 in the first instance. (See People v. Calles (2012) 209 Cal.App.4th 1200, 1221 ["When the base term of a sentence is stayed under section 654, the attendant enhancements must also be stayed"].)
Jones Is Not Entitled to Reduction of his Sentence Based on Statements in the Prosecution's Trial Brief
Jones next argues that his due process rights were violated by the prosecution's statement in its trial brief that his likely maximum sentence was 66 years six months.
By way of brief background, on June 26, 2020, the prosecution filed its trial brief, which, in a section titled "Charges and Maximum Exposure," provided as follows:
"If convicted as charged, Defendant faces an aggregate sentence of 66 years, six months to life in state prison calculated as follows: The assaultive crimes that were committed against [M.C.] on February 10, 2020 (Counts I, II and IV) will likely result in an indeterminate sentence of 25 to life after a Penal Code §654 analysis. Count III, also committed against [M.C.] on February 10, 2020 but had a significantly different criminal objective, which should result in a consecutive term of 25 to life. There are two charged Penal Code §667(a) 'nickel priors,' which will result in an additional 10 years. The vandalism of the Ukiah Police Department patrol car, which occurred on February 12, 2020, clearly results in a determinate sentence of six years, with an additional six months for the methamphetamine charge. This determinate sentence of six years, six months will be served before the 60-year indeterminate sentence detailed above."
At a pretrial conference that same day, the court indicated that trial was set to begin the coming Monday. Defense counsel then stated that he had met with Jones that morning to review a plea deal offered by the prosecution, and continued: "Mr. Jones's exposure pursuant to the trial brief Mr. Trigg filed earlier today is 66 years to life. It's very, very serious." Defense counsel then stated that the prosecution had offered a plea in which Jones would admit to dissuading a witness and one strike and would be sentenced to eight years-four years doubled to eight because of the prior strike.
And defense counsel then stated that the defendant "says he would be willing to plead to the [section] 594 that is alleged. That's damage to a police vehicle, damage in excess of $900 and a strike which would expose him to six years. That's not the eight years that Mr. Trigg requested." Defense counsel went on: "I believe Mr. Trigg has not yet technically responded to that [offer] so I'll allow him to do so. [¶] All I can say is that if Mr. Trigg does not accept that offer and Mr. Jones does not accept the eight years this matter will go to trial Monday."
The prosecutor then rejected the six-year offer, and the parties and the court went on to discuss trial preparation.
Relying on People v. Goodwillie (2007) 147 Cal.App.4th 695 (Goodwillie), Jones argues that the prosecution misrepresented his maximum sentencing exposure and thereby violated his due process rights. In Goodwillie, at the time defendant was deciding whether to accept a plea offer, the trial court and the prosecutor erroneously informed him that he would not be eligible for 50 percent credits, and would instead have to serve 85 percent of his sentence. (Id. at p. 733.) Defendant then rejected the offer. (Ibid.) Because this misrepresentation caused defendant to "reject an offer that was more favorable to him than the result after trial"-"one that he had indicated a willingness to accept"-the Court of Appeal concluded that the trial court and prosecutor's misunderstanding had "violate[d] notions of fundamental fairness assured by the due process clause of the Fourteenth Amendment." (Id. at p. 735.)
We find Goodwillie distinguishable, for two reasons.
First, here there was no misunderstanding or misrepresentation regarding Jones's maximum exposure. The trial brief stated that counts 1, 2, and 4 would "likely result in an indeterminate sentence of 25 to life after a Penal Code §654 analysis." It thus made clear that the sentence would depend on how the trial court analyzed the convictions under section 654, leaving open the possibility that the maximum sentences on each count could be imposed consecutively. Unlike in Goodwillie, the trial brief did not make any unequivocal and untrue statements about Jones's sentencing exposure.
Second, there is no evidence that the statement in the trial brief caused Jones to reject a plea offer that he would have otherwise accepted-in other words, that the statement "brought the plea bargaining process to a halt, and thus prevented [defendant] from obtaining a plea offer more favorable to him than the sentence he received after trial." (Goodwillie, supra, 147 Cal.App.4th at p. 735.) The trial brief itself was not filed until the morning of the hearing, at which point some negotiations over the plea offer had presumably already taken place. As explained by defense counsel, the disagreement between the parties was whether defendant would plead to dissuading a witness and one strike and be sentenced to eight years or instead plead to vandalism and be sentenced to six years. In either case, Jones-who was 46 years old at the time of sentencing-was facing what his counsel described as "very, very serious" sentencing exposure in the event he went to trial, ranging from some 66 years to 105 years depending on the application of section 654. There is no evidence that the prosecution's statement in its trial brief had any effect on Jones's decision not to accept the prosecution's plea offer.
Goodwillie held that the standard for assessing prejudice was the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. (Goodwillie, supra, 147 Cal.App.4th at p. 736.) At least one subsequent case has disagreed. (See People v. Miralrio (2008) 167 Cal.App.4th 448, 462-463 [holding that "[t]he burden of showing that a defendant would have accepted the plea bargain, had he been correctly advised of penal consequences, is properly placed on defendant"].) Because we find no due process violation, we need not decide what standard of prejudice applies. We simply note that the record contains no evidence of prejudice, under any standard.
The Prior Strike Enhancements Were Authorized Under People v. Williams (2004) 34 Cal.4th 397
Jones's final argument is that section 667, subdivision (a)(1) should not be interpreted to authorize a five-year enhancement on each count of conviction for which he received an indeterminate sentence, an argument he concedes our Supreme Court considered and rejected in People v. Williams (2004) 34 Cal.4th 397, 401-405 (Williams). Jones acknowledges that we are bound by Williams, but asks that we "encourage the Supreme Court to reexamine the matter." We decline to do so.
"A person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively."
DISPOSITION
The case is remanded for the trial court to apply section 654 to counts 2 and 4 in accordance with the views expressed in this opinion, to prepare a corrected abstract of judgment in accordance with the disposition, and to forward a certified copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Stewart, J., Miller, J.