Opinion
A145935
08-31-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY C. MCCUNE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H56081)
Appellant Anthony McCune appeals from his convictions after a jury trial on three charges arising from a domestic violence incident. McCune claims that (1) his trial counsel rendered ineffective assistance by failing to object to prosecutorial error during the trial and (2) the trial court violated his Sixth Amendment rights by sentencing him to consecutive sentences. We affirm the judgment, but correct McCune's sentence as to counts 2 and 4.
I. BACKGROUND
An information filed June 20, 2014 charged McCune with felony violations of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) (count 1), corporal injury to a spouse, cohabitant, or child's parent (§ 273.5, subd. (a)) (count 2), first degree residential burglary (§ 459) (count 3), and, as amended on April 20, 2015, a misdemeanor violation of contempt of court for violating a protective order (§ 166, subd. (c)(1)) (count 4). Counts 1 and 2 of the information further alleged McCune personally inflicted great bodily injury on the victim (§ 12022.7, subd. (e)) and the offenses were serious and violent felonies (§§ 1192.7, subd. (c)(8), 667.5, subd. (c)(8)). Count 3 alleged another person who was not an accomplice was present during the commission of the burglary (§ 667.5, subd. (c)(21)), and the offense was a serious and violent felony (§ 1192.7, subd. (c).)
Subsequent undesignated statutory references are to the Penal Code.
Jury trial began on April 30, 2015. During trial, the court accepted McCune's plea of no contest to count 4 and the court granted the prosecutor's motion to dismiss count 1. The remaining charges, counts 2 and 3, along with their enhancement allegations, were submitted to the jury for deliberation on May 21, 2015.
A. Trial Testimony
Vanessa P. (Vanessa) and McCune met in high school and began dating when Vanessa was age 16 and McCune was 19. Vanessa and McCune have two sons, born in 2004 and 2007. They lived together from 2004 until June 2013, when, as a result of an incident in which McCune grabbed Vanessa by the throat during an argument, Vanessa obtained a family court restraining order protecting her and the children. McCune was convicted of misdemeanor battery based on this incident, and a criminal protective order issued.
Following the throat-grabbing incident, McCune moved out and Vanessa changed the locks on the door of the apartment they had shared. The family court established a schedule for shared custody of the children. The restraining order initially required that McCune have no contact with Vanessa or their sons, but the court modified it later in 2013 so Vanessa and McCune could have peaceful communication regarding the children to facilitate the shared custody arrangement.
One day in early January 2014, Vanessa and McCune were communicating peacefully by text and cell phone to set a date for McCune to take one of his sons to a doctor's appointment. Later that evening, around 10:00 p.m., Vanessa received an angry, loud phone call from McCune, who told her "Emily's on her way." Minutes later, Emily, the estranged wife of McCune's friend Jason, came to Vanessa's door, loudly knocking and "ranting" about Vanessa having an affair with Jason. Vanessa's sons and mother were also home during this incident; her sons were scared and were asking who was at the door. Emily continued to knock at the door and yell for about 5 to 10 minutes. Vanessa's mother called 911, but Emily had left by the time law enforcement arrived.
Alameda County Sheriff's Deputy John Malizia arrived and took a report; McCune showed up at the apartment door a few minutes after Malizia left. McCune banged on the door and said in an angry tone of voice, "Open the door so we can talk." Vanessa told him, "We'll talk tomorrow. Go home. Leave it alone." Instead of leaving, McCune kicked in the apartment door, breaking it completely off its hinges. McCune charged at Vanessa and began punching and hitting her. Their sons, who witnessed the attack, were screaming for McCune to stop. At some point, Vanessa thought McCune was leaving, but he turned around and began hitting her again. Eventually McCune stopped attacking her and walked out of the apartment, leaving Vanessa covered in her own blood, with multiple bruises, a black eye, and a broken nose. Vanessa testified McCune was not living with the family at the time of the January 2014 incident.
McCune's older son, A.M., who was 11 years old at the time of trial, testified and corroborated his mother's account of the incident, saying he first heard what he thought was a woman's voice at the door, and his mother and grandmother were yelling back and forth with the woman through the door. This made him feel scared and nervous, and he began shaking; his mother tried to put him and his brother in another room to keep them safe. A.M. testified that the police came into their apartment to "mak[e] sure everything was okay," and his father (McCune) arrived after the police left. A.M. saw his father break down the door and start punching his mother, and although he was scared, he stayed in the room and tried to pull his father from behind while yelling "stop." Vanessa's mother testified that she also tried, unsuccessfully, to stop the attack by getting in between Vanessa and McCune; she called 911 after McCune left the apartment.
Deputy Malizia was called back to Vanessa's apartment at 11:46 p.m. the same night. When he pulled into the driveway, Vanessa's mother was on the balcony of the apartment, screaming, and when he came upstairs, he saw that the apartment door had been forcefully kicked open, splintering the wood around the hinges. Malizia went inside and saw Vanessa covered in blood and shaking uncontrollably. He asked her, "Who did this" and Vanessa said, "It was Anthony."
Deputy Anthony King also came to the apartment. King also saw the kicked-in door, blood on the walls and carpet, and Vanessa's wounded face. Deputy King interviewed A.M., who was frightened and in shock, but quickly provided to the deputy the details of the incident he had just witnessed.
Deputy Malizia then called McCune, using the number obtained earlier that evening. He asked McCune to meet with him, but McCune refused, saying he could not drive because he had been drinking. He told McCune that Vanessa got her door kicked in, and she was hurt. McCune responded, "That bitch got what she deserved." Malizia again asked McCune to meet with him. McCune said he was not in the area, adding, "You can come find me." Detective Jennifer Sells obtained information from a cell phone provider that McCune's cell phone was located at a Pittsburg address. On January 30, 2014, some three weeks after the incident at Vanessa's apartment, the police arrested McCune at the Pittsburg address.
McCune testified on his own behalf. He said he had moved back in with Vanessa and his sons a month after his September 2013 battery conviction, and that he had a key to the apartment. His defense was based on the theory that "Emily" was the true perpetrator of the assault against Vanessa. He testified he and Vanessa did argue about her affair with Jason, but it was before Emily showed up, and that he merely "backhanded her" on her cheek because he was angry that he was having unprotected sex with her while she was sleeping with someone else. McCune said after he hit Vanessa, she started to cry and he felt badly because he "let [his] anger . . . get the best of [him]." He then saw Emily coming up the stairs and told Vanessa to go inside and lock the door. McCune testified Emily "popped open" the door and punched Vanessa several times. Because it was an unfair fight, McCune pulled Emily away and then Emily left. After that, McCune realized he could be arrested for violating his restraining order, so he said goodbye to his sons and left.
During cross-examination, the prosecutor asked him, "Did you ever go to the police after January 10th, 2014, and tell them, [y]ou know what, you've got the wrong person, it was Emily that hurt Vanessa, it wasn't me?" and "[w]hen you got arrested on the 30th of January, did you tell the police officers then, [y]ou've got the wrong person, Emily was the person that did this, I didn't do this?" McCune answered "[n]o" to both questions. The defense did not object during questioning, but four days later counsel objected that the prosecutor had committed error and moved for a mistrial. Counsel subsequently modified the motion, seeking either a mistrial or, alternatively, "a corrective instruction of some sort, and that in the meantime they strike the line of questions." The court denied the motion for mistrial, but agreed to strike the questions and answers with an admonition to the jury.
B. Jury Deliberations, Verdict, and Sentencing
On May 26, 2015, the third day of jury deliberations, the jury foreperson reported to the court that the jury was "hopelessly deadlocked on the issue of the great bodily injury [(GBI)] enhancement [on count 2] and that further deliberations would not bring about a verdict in this case." After polling the jury and each juror agreeing that they could not reach a conclusion, the trial court declared a mistrial as to the GBI enhancement attached to count 2. After declaring the mistrial as to the GBI enhancement, the court elicited from the jury foreperson that nine people were in favor of finding the allegation to be true and three people would have found it not true. The jury resumed its deliberations, and later that day it found McCune guilty on the remaining charges in counts 2 and 3.
On July 24, 2015, the court sentenced McCune to the upper term of six years in state prison for count 3, with an additional, consecutive term of one year (one-third the midterm) for count 2, stayed under section 654, and a concurrent term of one year in county jail for count 4, also stayed under section 654. The court imposed a separate term of one year in county jail, to be served after completion of the state prison sentence, for the violation of probation imposed following McCune's 2013 conviction of misdemeanor battery.
II. DISCUSSION
A. Prosecutorial Error and Ineffective Assistance of Counsel
While McCune was under cross examination on Thursday, May 14, 2015, the prosecutor asked him whether he went to the police after the January 2014 incident at Vanessa's apartment and told them, "You know what, you've got the wrong person, it was Emily that hurt Vanessa, it wasn't me?" The prosecutor also asked, "When you got arrested on the 30th of January, did you tell the police officers then, [y]ou've got the wrong person, Emily was the person that did this, I didn't do this?" McCune answered, "No, I didn't," to each question. McCune admitted that he did not try to call Emily again after he was in jail or after he was released on bail, but said it was because he did not have a phone. The prosecutor then asked McCune, "So you didn't think it was important that the D.A.'s office or the police department knew who this real perpetrator was?" McCune answered, "Yes, I did think it was important," but stated he did not have a phone number to call Emily. The court corrected the record that McCune tried to contact Emily "a couple of times." Defense counsel did not object at the time.
Four days later, on Monday, May 18, 2015, defense counsel moved for a mistrial, arguing that the prosecutor's questions referencing McCune's failure to tell law enforcement that not he, but Emily, had been the perpetrator of the assault, was reversible error. McCune's trial counsel emphasized that the defense case "turns on the defendant's testimony regarding another person being present and committing the acts which resulted in great bodily injury . . . . And that person had been there before, we know the police were called on her earlier in the evening, and so it's [defendant's] credibility on that subject—is extremely important. For the D.A. to suggest, [o]h, you should have told the police what you are telling us now, when she knows that he has claimed his Fifth Amendment" right to remain silent during custodial interrogation by law enforcement is prosecutorial error because it is "essentially making a direct comment on [defendant's] claim of his constitutional privilege . . . ." McCune's counsel subsequently modified the motion, seeking either a mistrial or, alternatively, "a corrective instruction of some sort, and that in the meantime they strike the line of questions." The parties stipulated that after McCune was arrested on January 30, 2014, he answered pre-booking questions and then invoked his right to remain silent.
Defense counsel based his objection and motion for mistrial on Griffin v. California (1965) 380 U.S. 609 (Griffin). Griffin held that comment by the prosecutor on the defendant's failure to testify at trial, or jury instructions that such silence is evidence of guilt, is reversible constitutional error. (Griffin, at pp. 612-615; see also People v. Thompson (2016) 1 Cal.5th 1043, 1117-1118 [trial judge's comment to defense counsel about failure to call defendant to testify constituted Griffin error because it may have suggested to the jury that it should or may consider defendant's silence as evidence of guilt].) At the time, the prosecutor correctly pointed out that Doyle v. Ohio (1976) 426 U.S. 610 (Doyle), which prohibits a prosecutor from using a defendant's postarrest, post-Miranda warning silence to impeach defendant's trial testimony, not Griffin, more properly applies to the scenario that occurred in the trial court. (See Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) Although both defense counsel and the trial court continued to refer to the objection as a "Griffin error" matter, the substance of all arguments were argued under Doyle, and the parties on appeal seem to agree that Doyle controls; we will therefore discuss the issue referring to Doyle, not Griffin. --------
The trial court found that McCune's trial counsel failed to make a timely objection, and that the prosecutor's questions were "invited error" because of the failure to object. The court denied the motion for mistrial, but agreed to strike the questions and answers with an admonition to the jury that they should not consider the testimony for any purpose. The court reread the three questions and answers to the jury and explained, "As to those questions and answers, ladies and gentlemen, they are stricken from the record. [¶] As I previously indicated to you, but I also want to reiterate, nothing that the attorneys say is evidence . . . . [¶] And do not assume something is true just because one of the attorneys asked a question that suggests it is true. And if I order testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose. [¶] And with that admonition, the three responses given to those three questions by Mr. McCune last Thursday afternoon after [the prosecutor] asked them, they are stricken from the record, and you must disregard that testimony and not consider that testimony for any purpose."
McCune argues trial counsel rendered ineffective assistance by failing to timely object to this Doyle error. Although defense counsel did eventually object several days later, and the court ultimately struck testimony and issued a curative instruction, McCune argues the lapse in time between the error and the defense objection caused him to suffer incurable prejudice. The Attorney General primarily argues there was no Doyle error, either because it was not clear McCune had been read his Miranda rights, because the questions did not deal with McCune's postarrest silence, or because the trial court subsequently cured any error before the jury started deliberating.
As a threshold matter, it is true that "to determine whether counsel's performance was incompetent, we must first decide if the prosecutor committed Doyle error. Defense counsel's performance cannot be considered deficient if there was no error to object to." (People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520 (Eshelman); People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1555 (Hollinquest).) We construe the trial court's ruling of "invited error" as a finding that at least some portion of the prosecutor's questions that were ultimately stricken were improper and constituted Doyle error. (See Doyle, supra, 426 U.S. at pp. 617-618; see ante, fn. 2.) "[A] Doyle violation has two components . . . . The first element is that the prosecution makes use of a defendant's postarrest silence for impeachment purposes . . . . The second essential element is that the trial court permits that use." (People v. Evans (1994) 25 Cal.App.4th 358, 368, fn. omitted, citing Greer v. Miller (1987) 483 U.S. 618, 761-764.) Even a single improper question from the prosecution can constitute Doyle error. (Evans, at p. 362.) The prosecutor in this case asked McCune whether he "ever [went] to the police" after the January 2014 incident to tell them Emily was the person who assaulted Vanessa, and also whether "[w]hen [he] got arrested on the 30th of January, did [he] tell the police officers then, [y]ou've got the wrong person, Emily was the person that did this, [he] didn't do this?" Assuming that McCune invoked his right to remain silent at some time on January 30, 2014, a fact to which the parties stipulated, then both of those questions can be interpreted to cover the post-Miranda time period, and are therefore improper under Doyle. (See United States v. Lopez (9th Cir. 2007) 500 F.3d 840, 845 (Lopez) [finding of Doyle error where prosecutor asked defendant whether he "ever" told law enforcement officer about information pertinent to his defense]; see also Hollinquest, at p. 1558 [prosecutor's reference to defendant's post-Miranda silence during private conversations was Doyle error].) In addition, the trial court, in part due to a lack of objection from McCune's attorney, initially allowed the questions and answers to go to the jury for consideration. We agree with the trial court that, at least for the four days before it struck the questions at issue and admonished the jury, a Doyle error had occurred.
"Once deciding that Doyle error occurred, we must next determine whether defense counsel's failure to object to the prosecutor's tactics constituted incompetence." (Eshelman, supra, 225 Cal.App.3d at p. 1521.) To establish a claim of ineffective assistance of counsel, a defendant must demonstrate both that (1) counsel's representation fell below an objective standard of reasonableness and (2) that the defendant suffered prejudice as a result, in that it is reasonably probable that, but for counsel's error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) To show deficient performance, the defendant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." (Strickland, at p. 687.) To show prejudice, the defendant must show "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Ibid.) If either element has not been proven, the defendant's claim of ineffective assistance fails. (Id. at p. 697.)
In addition, the Strickland court made clear that, although they had discussed "the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (Strickland, supra, 466 U.S. at p. 697.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Ibid.) In a case with Doyle error, it is appropriate to "turn our focus to an examination of the prejudicial impact of the admission of evidence in violation of Doyle, and the prosecutor's associated misconduct" by making improper reference to defendant's post-Miranda silence. (Hollinquest, supra, 190 Cal.App.4th at p. 1558.) In this case, we take the Strickland court's invitation to start with the prejudice inquiry, and in doing so, find that none exists.
" 'When deciding whether a prosecutor's reference to a defendant's post-arrest silence was prejudicial, this court will consider the extent of comments made by the witness, whether an inference of guilt from silence was stressed to the jury, and the extent of other evidence suggesting defendant's guilt.' " (Lopez, supra, 500 F.3d at p. 845; accord, Hollinquest, supra, 190 Cal.App.4th at p. 1559.) "The test of prejudice is the standard enunciated in Chapman v. California (1967) 386 U.S. 18, 24: we must reverse the judgment unless beyond a reasonable doubt the error complained of did not contribute to the verdict." (Hollinquest, at pp. 1558-1559; see also United States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1163; People v. Waldie (2009) 173 Cal.App.4th 358, 366; People v. Champion (2005) 134 Cal.App.4th 1440, 1453.) A finding of harmless error will necessarily translate into a finding of "no prejudicial incompetence of counsel." (Hollinquest, at p. 1561.)
We do not think defense counsel's failure to interpose a timely objection affected the result here. McCune insists the case came down to a "swearing contest" between him and Vanessa, with each of them telling very different accounts of the events of January 10, 2014. But that disregards overwhelming evidence of his guilt, including the corroborating testimony of Vanessa's mother and his own son. We think it highly probable that the jury believed Vanessa, her mother, and A.M. over McCune, who had a clear self-interest to lie about who committed the assault against Vanessa. Trial testimony also established Vanessa was of slight build, and McCune was nearly twice her weight and much taller. Just before the attack, the door to Vanessa's apartment was broken off of its hinges, which would require a significant amount of force that not just anyone could exhibit.
McCune also attempts to convince us "[s]ome of the jurors had doubts about [Vanessa's] truthfulness" because "the jury could not reach a conclusion about personal infliction of great bodily injury." Assuming arguendo that some jurors were inclined to believe McCune's version of events from that night, then the improper cross-examination and defense counsel's failure to immediately object allowed a wavering jury to ruminate for four days on why McCune didn't tell law enforcement about Emily's involvement before the testimony was stricken and the jury was given the curative instruction. This, McCune insists, tipped the scales and changed the outcome of the trial. It is much more likely, however, that the jury failed to reach a verdict on the GBI enhancement not because they thought someone else inflicted the injury, but because they were not convinced the injury was significant enough. The jury received CALCRIM No. 3160, which instructed them that if they found McCune guilty of the domestic violence assault charge in count 2, then they were required to decide whether McCune "personally inflicted great bodily injury" on Vanessa during the commission of the domestic violence offense. CALCRIM No. 3160 further explains that "[g]reat bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." Vanessa was punched several times and suffered a broken nose and a black eye, but no other broken bones. Certainly, this evidence might be sufficient for a finding of GBI, but it is also plausible that some jurors did not think her injuries were "greater than minor or moderate harm." To believe that instead the jurors thought it was Emily who inflicted Vanessa's injuries is to ignore the testimony of Vanessa, A.M., and Vanessa's mother as well as the corroborating evidence that McCune was Vanessa's attacker. In a case such as this, "where the trial record shows an exceptionally persuasive prosecution case" compared to a much weaker defense case, any Doyle error will be deemed harmless. (People v. Evans, supra, 25 Cal.App.4th at p. 370.)
Finally, we think the trial court cured any possible prejudice by striking the affected testimony and admonishing the jury. In Greer v. Miller, supra, 483 U.S. at page 764, the prosecutor was only able to ask an improper question touching on defendant's postarrest silence; the defense attorney objected immediately and the trial court explicitly sustained the objection. Because the defendant's "postarrest silence was not submitted to the jury as evidence from which it was allowed to draw any permissible inference," the Supreme Court found that no Doyle error occurred. (Id. at pp. 764-765.) Here, the jury had McCune's postarrest silence admitted into evidence for several days before the error was corrected by the trial court's striking of testimony and admonishment. Although we are convinced there was Doyle error, the fact that the court took curative steps once an objection was raised, and because the error was not in evidence when the jury began its deliberations, we find that sufficient to overcome any prejudice that might have occurred from the error. In addition, the trial court did not give any instructions that exacerbated the error—e.g., the jury was not directed to draw an inference of guilt from defendant's silence. Instead, it gave proper instructions that further ensured the jury would disregard the prosecutor's improper questioning and McCune's answers. Not only did the court admonish the jury and instruct it to disregard the stricken testimony as soon as defense counsel made an objection, but it also stated during its final instructions that the jury was required to disregard any testimony it had stricken from the record. As the Attorney General notes, we presume the jury followed both the curative and final instructions of the trial court and disregarded the stricken testimony. (People v. Edwards (2013) 57 Cal.4th 658, 723.)
B. Sentencing Error
As discussed above, the trial court sentenced McCune to the upper term of six years for the first degree burglary conviction with someone other than an accomplice present (§§ 459, 1192.7, subd. (c), 667.5, subd. (c)(21)) (count 3), and sentenced McCune to an additional, consecutive term of one year (one-third the midterm) stayed under section 654 for count 2. The court also imposed a concurrent term of one year in county jail for count 4, also stayed under section 654, and a separate one-year term in county jail on the trailing misdemeanor probation violation that was found true, to be served consecutive to the state prison sentence.
During sentencing on July 24, 2015, the court first outlined its intended sentence, and explained its thoughts on whether to stay each sentence under section 654. The court indicated it would sentence McCune to the upper term of six years in state prison for count 3, selecting the upper term "because the victim was particularly vulnerable in this case." The court then explained "if all the offenses were incident to one objective," then McCune may only be punished for one offense. The court found "the provisions in 654 apply" to counts 2, 3, and 4, and section 654 "mandate[s] that the defendant be sentenced under the provision for the longest potential term of imprisonment," and therefore chose count 3 as the principal count. The court imposed an additional, consecutive term of one year (one-third the midterm), stayed under section 654 for count 2, and a concurrent term of one year in county jail for count 4, also stayed under section 654. It decided to impose a consecutive term on count 2 "even though it is stayed because the conduct of the defendant evidences, in the [c]ourt's view, a high degree of cruelty, [viciousness], and callousness, and . . . the defendant engaged in violent conduct that indicates he is a serious danger to society." Finally, the court also imposed a separate consecutive term of one year in county jail, to be served after completion of the state prison sentence, for the violation of probation imposed following McCune's 2013 conviction of misdemeanor battery. The court noted a consecutive sentence for the probation violation was appropriate because it "sufficiently punishes the defendant for the conduct that he engaged in of battering Vanessa [P.] on June 25th of 2013 and the defendant's prior performance on probation was unsatisfactory, [having been] revoked several times." Defense counsel objected to the sentence as "not consistent with law."
The court imposed the sentence as announced, but additionally justified its upper term sentence on count 1 "because the defendant's prior convictions as an adult are numerous and they are increasing in seriousness," noting that McCune had four misdemeanor convictions, and was still on probation for the conviction of misdemeanor battery of the same victim (Vanessa) as this case. As to count 2, the court announced that it had "considered the criteria affecting the imposition of concurrent or consecutive sentences as outlined in California Rule of Court 4.425 paragraph (a). And the Court is imposing a consecutive sentence as to this count because the conduct of this defendant evidences a high degree of cruelty, viciousness, and callousness and because this defendant has engaged in violent conduct that indicates that he is a serious danger to society and I so find, based on the evidence presented and heard throughout this trial which I have found to be credible to indicate the comments that the Court just made—this defendant viciously and repeatedly beat and punched Vanessa [P.], again, a slightly built female, about 5'3" or 5'4", weighing 104 pounds, half the weight of the defendant, who is the mother of his two sons, while the children watched and while her mother watched, thereby bloodying her, fracturing her nose" and "causing lumps to her body, bruising and swelling and the necessity to have her nose rebroken by an ear, nose, and throat specialist to properly align her nose." Defense counsel objected "to all these findings on the grounds that the jury didn't make them, there was no unanimous verdict that he personally did any of that, and therefore the Court is doing this on her own without reference to what the jury found." Defense counsel argued that the jury "found that [defendant] didn't personally inflict" injury on the victim. The court clarified: "[The jury] didn't find there was GBI and they didn't necessarily find that he personally inflicted GBI. [¶] That does not prevent the Court from looking at the evidence as to why she is making her statements that this should, in fact, be a consecutive sentence, Counsel." Defense counsel stated his "specific objection" was that "there hasn't been a jury verdict on the subject" of whether McCune was the person who caused the injury, "and the Court is making independent findings, then he hasn't been tried on the subject matter which the Court is using to aggravate his sentence."
1. Imposition of Consecutive Sentences Does Not Violate Apprendi
McCune claims the imposition of consecutive sentences was a violation of his Sixth Amendment right to have a jury find (with certain exceptions) all facts used to aggravate a sentence beyond the statutory maximum term of confinement. (See Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi); Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. 270.) We see no need to launch into an extensive discussion of this branch of Sixth Amendment jurisprudence because, as McCune acknowledges, it does not apply to the imposition of consecutive sentences. (See Oregon v. Ice (2009) 555 U.S. 160, 170; People v. Scott (2015) 61 Cal.4th 363, 405.)
In Oregon v. Ice, supra, 555 U.S. at pages 163, 170, the United States Supreme Court squarely addressed the very issue of whether findings used to impose consecutive sentences should be within the province of the judge or the jury. The Court, reaching as far back as "England before the founding of our Nation" and the "early American States," looked to the historical record of the right to a jury trial and found it "demonstrate[d] that the jury played no role in the decision to impose sentences consecutively or concurrently. Rather, the choice rested exclusively with the judge." (Id. at pp. 168-169.) Thus, the Court reasoned, when a judge imposes consecutive sentences, "[t]here is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury's domain as a bulwark at a trial between the State and the accused," and therefore a sentencing court's imposition of consecutive sentences does not "implicate the core concerns that prompted our decision in Apprendi." (Id. at p. 169.) The Court's holding in Oregon v. Ice is now firmly established, having been followed and applied repeatedly in subsequent High Court decisions and in decisions of the California Supreme Court. (See Setser v. United States (2012) 566 U.S. 231, 236, citing Oregon v. Ice, at pp. 168-169 ["Judges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings."]; People v. Capistrano (2014) 59 Cal.4th 830, 884 ["To the extent defendant challenges on constitutional grounds the trial court's decision to impose consecutive sentences . . . , that contention is foreclosed by the high court's decision in Oregon v. Ice . . ."]; People v. Scott, supra, 61 Cal.4th at p. 405, quoting Oregon v. Ice, at p. 170 [" 'the Sixth Amendment's restriction on judge-found facts' is 'inapplicable' when a trial judge makes factual findings necessary to the imposition of consecutive terms."].)
2. McCune's Sentence Must Be Corrected
Although we have determined Apprendi does not apply, McCune's objection to consecutive sentences is well taken. The court's sentencing procedure in relation to section 654 and the imposition of consecutive sentences was flawed, resulting in an unauthorized sentence on counts 2 and 4. After finding that section 654 applied to counts 2 and 4, the court should have imposed full sentences on those counts, but suspended their execution, without making a determination as to whether they should be served concurrently or consecutively.
Rule 4.424 of the California Rules of Court directs courts on the "[c]onsideration of [the] applicability of section 654." Rule 4.424 mandates that "[b]efore determining whether to impose either concurrent or consecutive sentences on all counts on which the defendant was convicted, the court must determine whether the proscription in section 654 against multiple punishments for the same act or omission requires a stay of execution of the sentence imposed on some of the counts."
"[S]ection 654 precludes multiple punishment when a criminal act . . . violates multiple penal provisions." (People v. Alford (2010) 180 Cal.App.4th 1463, 1466.) "Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences." (People v. Deloza (1998) 18 Cal.4th 585, 591- 592; see In re Wright (1967) 65 Cal.2d 650, 652-655 [trial court erred in imposing concurrent sentences for two convictions for which section 654 prohibited multiple punishment].)
As explained in People v. Alford, supra, 180 Cal.App.4th at page 1469, in order to implement section 654, "the trial court must impose sentence on all counts, but stay execution of sentence as necessary to prevent multiple punishment." Even imposition of concurrent terms is not the correct method, "because a concurrent sentence is still punishment" and is a "rejection of the applicability of section 654." (Id. at p. 1468.) This reasoning is also true for consecutive sentences. "[T]he imposition of a 'consecutive' and 'stayed' sentence would be meaningless because the stayed sentence would only operate if the principal count were eliminated. Therefore, a stayed sentence cannot be consecutive to a principal sentence." (People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164). In addition, the "one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not a sentence stayed under section 654." (Ibid.)
In McCune's case, the trial court properly addressed section 654 first, and in doing so designated the first degree burglary charge (count 3) as the principal count, imposing an upper term sentence of six years. The court then apparently applied section 1170.1 to count 2, sentencing McCune to a consecutive sentence of one year, which is one-third the midterm for a conviction of section 273.5. Instead, the court should have imposed a full-term sentence for count 2 but stayed its execution without announcing whether it was to run concurrent or consecutive. The same is true for the court's sentence on count 4; the court should have imposed its sentence (a one-year term in the county jail) but stayed its execution under section 654 without designating it "concurrent." We have inherent authority to correct an unauthorized sentence (People v. Relkin (2016) 6 Cal.App.5th 1188, 1198; People v. Smith (2001) 24 Cal.4th 849, 852) and in our disposition shall do so.
III. DISPOSITION
We modify the judgment and direct that the abstract of judgment be corrected to reflect (1) imposition of a sentence of three years (the middle term) on count 2, execution of which is stayed under section 654, and (2) imposition of a sentence of one year in the county jail on count 4, execution of which is stayed under section 654. Any reference to "consecutive" or "concurrent" terms in counts 2 and 4 should be stricken from the abstract and the judgment. Subject to those corrections, we affirm the judgment of conviction and sentence.
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Rivera, J.