Opinion
C083124
07-17-2018
THE PEOPLE, Plaintiff and Respondent, v. AMBER MAY SCHENCK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F07063)
A jury found defendant Amber May Schenck guilty of mayhem (Pen. Code, § 203), assault with a deadly weapon—a knife (§ 245, subd. (a)(1)), willful infliction of corporal injury resulting in a traumatic condition upon a former cohabitant (§ 273.5, subd. (a)), and first degree burglary (§ 459). The jury also found true the allegations that she personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) and personally used a deadly and dangerous weapon—a knife (§ 12022, subd. (b)(1)). In a bifurcated proceeding, the trial court found true the allegation that she had a prior conviction for domestic violence within the meaning of section 273.5, subdivision (f)(1). The trial court sentenced her to an aggregate term of eight years four months in prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends as follows: (1) the trial court abused its discretion in failing to exclude domestic violence propensity evidence as a discovery sanction; (2) the trial court abused its discretion in allowing the prosecutor to introduce domestic violence propensity evidence under Evidence Code section 352; (3) the trial court erroneously instructed the jury pursuant to CALCRIM No. 852; (4) the trial court's true finding on the prior domestic violence conviction allegation should be stricken because it is not supported by substantial evidence; and (5) the trial court erred by imposing an unauthorized sentence on the corporal injury offense.
We will vacate defendant's sentence and remand this matter for further proceedings on the prior domestic violence conviction allegation, and for resentencing. In all other respects, we affirm the judgment.
FACTUAL BACKGROUND
We only briefly summarize the facts relevant to the resolution of the claims raised on appeal. The relevant procedural background is discussed post.
The victims, Martin and Diane, married in 2001. At the time of trial, they had been married for 15 years.
Around 2006, Martin moved to Nevada for work. At some point, Diane moved to Nevada to be with Martin but they eventually separated and Diane returned to Sacramento around 2008. In 2009, Martin met defendant at his job in Nevada. Shortly thereafter, they started dating and moved in together. Three weeks later, defendant told Martin she was pregnant.
After the baby was born, defendant and Martin argued daily. Defendant was physically violent with Martin on multiple occasions, including two incidents in 2010. In one incident, which occurred at their residence in Nevada, defendant argued with Martin, accused him of cheating on her, and then physically attacked him. During the attack, defendant hit Martin, bit his arm, and kicked him in the stomach. In another incident, which occurred at a casino in Nevada, defendant yelled at Martin and then physically attacked him. During this incident, defendant slapped Martin. When Martin tried to walk away, defendant followed him and continued to yell at him. She also forcefully shoved a baby carrier into his body multiple times while the baby was inside the carrier.
In February 2015, Martin moved back to Sacramento. He initially stayed with his aunt. However, he moved in with Diane a few days later. When defendant moved to Sacramento two or three months later, Martin and defendant moved in with Martin's aunt. They argued frequently and got into a physical altercation in a car in May 2015.
In late August or early September 2015, Martin went to Diane's house following an argument with defendant. Because he did not want defendant to know where Diane lived, Martin parked his car at a friend's house. Two or three days later, Martin learned that defendant was inside his car. Diane and three of her friends went to retrieve the car.
When Diane attempted to open the front door of Martin's car, defendant held it shut. After a brief struggle with the door, defendant kicked it open. The corner of the door struck Diane just below her left eye and knocked her to the ground. Defendant then jumped on Diane and started hitting her. Diane fought back. During the ensuing struggle, defendant bit Diane's ear. Eventually, Diane was able to get on top of defendant. At that point, defendant asked her to stop. After Diane did so, defendant kicked her in the face and then walked away. Following this incident, Diane went to the hospital and was treated for her injuries. She had two black eyes and had lost a portion of her ear.
In November 2015, Martin, again, went to Diane's house following an argument with defendant. Around 20 minutes later, Diane and Martin heard a noise outside that sounded like glass breaking. Diane grabbed her Taser and went to the front door with Martin. When Martin opened the door, he saw defendant trying to get into his car. He warned defendant that the police would be called if she did not leave. At that point, defendant ran toward the front door and forced her way into the house. During the ensuing altercation, defendant cut Diane's right hand and her upper chest/left shoulder area with a pocketknife and stabbed her once in the chest. Defendant also cut Martin's face and ear with the knife. Eventually, Martin grabbed defendant and took her outside. After defendant promised to leave, Martin let her go and she ran away. Following this incident, Martin and Diane went to the hospital and were treated for their injuries. Martin received approximately 24 stitches on his face.
DISCUSSION
I
Domestic Violence Propensity Evidence
Defendant contends the trial court abused its discretion in failing to exclude domestic violence propensity evidence as a discovery sanction. Defendant further contends the trial court abused its discretion in allowing the prosecutor to introduce domestic violence propensity evidence under Evidence Code section 352. According to defendant, the probative value of the prior uncharged acts of domestic violence was minimal due to the factual dissimilarities between the uncharged acts and the current domestic violence charge. Defendant maintains that any probative value of the evidence was clearly outweighed by the prejudicial effect of the evidence, as the prior acts evidence was inflammatory, cumulative, and confused the issues. Finally, defendant contends the trial court erroneously instructed the jury pursuant to CALCRIM No. 852, which is the pattern jury instruction regarding domestic violence propensity evidence. We reject defendant's arguments.
A. Additional Background
On the first day of trial, the prosecutor moved, pursuant to Evidence Code section 1109, for an order permitting the introduction of evidence demonstrating that defendant had suffered two prior misdemeanor domestic violence convictions in Nevada in 2010. In her motion, the prosecutor stated she intended to introduce defendant's "certified rap sheet" to show defendant had a propensity to commit domestic violence.
After the matter was continued, defendant filed a written opposition to the prosecutor's motion. She argued the prior uncharged acts evidence should be excluded as a discovery sanction. In support of her argument, defendant noted that the prosecution had "only provided a rap sheet and no police reports less than 24 hours" before trial was initially scheduled to commence. In addition, defendant incorporated by reference the arguments she made in her "Trial Brief/Motions in Limine on this issue." In her previously filed "Trial Brief and Motions in Limine," defendant moved for an order excluding any " 'other crime' " evidence, unless the evidence was "specifically noticed by the prosecution." Defendant objected to the admission of evidence demonstrating that she "made threats or that [s]he intended harm against any witness or potential witness, or that . . . she committed prior or other offenses." She requested the court require the prosecution to specifically identify any other crime evidence that it intended to introduce against her so that its admissibility could be litigated prior to trial. Defendant went on to argue that the "rap sheet" the prosecution had recently disclosed was inadmissible on multiple grounds, including late discovery and Evidence Code section 352.
At the hearing on the prosecutor's motion, defense counsel did not argue that the documents showing that she was convicted of two domestic violence offenses in Nevada in 2010 were inadmissible under Evidence Code section 1109 or Evidence Code section 352. Instead, counsel argued that the documents should be excluded as a discovery sanction based on the prosecutor's late disclosure of evidence. The court overruled defendant's objection. After the prosecutor explained why the evidence was untimely disclosed, the court stated: "[E]ven though . . . some of the information was turned over to the defense a little bit late, . . . I don't think there was any bad faith on behalf of the People. [The prosecutor] was busy and attacking this matter as soon as she was able to and turn over the information immediately upon her obtaining it. [¶] And I think there's enough time. It's not as if [defense counsel is] being presented with some witness that showed up at the last minute with some critical information that he's now going to have to investigate and check out. I don't think the fact he got this a little late would in any way prejudice his client. So I'm going to allow it."
Later that same day, during a discussion about the admissibility of evidence of Martin's prior acts of domestic violence, the prosecutor asked the court for clarification regarding its ruling on the admissibility of defendant's prior acts of domestic violence. The prosecutor told the court that she would like to question Martin about the details of defendant's prior acts in addition to presenting documents showing that defendant was convicted of domestic violence offenses following those acts. The prosecutor explained that one incident occurred at Martin and defendant's residence in Nevada and involved defendant biting, slapping, and kicking Martin. She further explained that another incident occurred at a casino in Nevada and involved defendant striking Martin with a baby carrier while the baby was inside the carrier. The prosecutor told the court that she wanted to call an eyewitness—a security guard from the casino—to testify about this incident. In seeking to introduce evidence of the details of defendant's prior acts of domestic violence, the prosecutor argued that it was important for the jury to "get the full picture," as the defense was going to "paint" Martin as a "woman abuser" and a "horrible human being" and claim defendant was in fear for her life during the stabbing incident. Defense counsel objected to the prosecutor's request to introduce evidence of the details of the prior domestic violence incidents, arguing that it was inappropriate and unacceptable for the prosecutor to make such a request immediately prior to the commencement of trial. Defense counsel noted that he needed time to investigate the background of the security guard eyewitness.
The trial court granted the prosecutor's request to elicit testimony about the details of defendant's prior acts of domestic violence in Nevada in 2010 but noted that the ruling was without prejudice to defendant bringing a motion to reconsider based on the late notice. The court explained: "Like I said, I think [the evidence is] relevant given the underlying facts, given how we are suppose[d] to treat 1109 evidence, I think we're suppose[d] to let that in. That's why I'll do everything I can. [¶] I think my charge is to let it in. This would work a little unfairness on the defense, but if we need to give him a little time to check something out, I'm willing to do that. [¶] But my view is to allow it in. That's my tentative ruling, subject to me reconsidering if [defense counsel] comes up, gets a lead on something that looks promising that he feels he's unable to pursue because of time and he wants to approach me with something to give him some time or perhaps reconsider my ruling to allow it in, we can talk about that then. But that's where I'm heading on this issue."
Defendant did not file a motion to reconsider or request a continuance based on the prosecutor's late disclosure of evidence.
At trial, Martin and a casino security guard testified about the details of defendant's prior acts of domestic violence in Nevada in 2010. The People did not introduce any documents showing that defendant was convicted of domestic violence offenses following those acts.
B. Request to Exclude Evidence as a Discovery Sanction
Section 1054 et seq. governs discovery in criminal cases. The purpose of the statute "is to promote ascertainment of truth by liberal discovery rules which allow parties to obtain information in order to prepare their cases and reduce the chance of surprise at trial." (People v. Jackson (1993) 15 Cal.App.4th 1197, 1201.) Section 1054.1 requires the prosecutor to disclose to the defendant or his or her attorney certain evidence in the prosecutor's possession, including the names and addresses of persons the prosecutor intends to call as witnesses and all relevant evidence obtained during the investigation of the charged offenses. (§ 1054.1, subds. (a) & (c).) The disclosure of evidence must be made "at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred." (§ 1054.7.)
If the prosecution does not comply with its discovery obligations, the trial court may make any orders necessary, "including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (§ 1054.5, subd. (b).) A trial court has discretion to impose discovery sanctions. However, that discretion is not unfettered. (People v. Superior Court (Mitchell) (2010) 184 Cal.App.4th 451, 459.) "Where there has been a failure of discovery the normal remedy is not dismissal or suppression of evidence, but a continuance to enable the defense to meet the new evidence. [Citations.]" (In re Jessie L. (1982) 131 Cal.App.3d 202, 210, citing People v. Reyes (1974) 12 Cal.3d 486, 501-502 & People v. McGowan (1980) 105 Cal.App.3d 997, 1002; see § 1054.5, subd. (c) ["The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted"]; People v. Superior Court (Mitchell), supra, at p. 459 [trial court may exclude witnesses' testimony as late discovery sanction " 'only if all other sanctions have been exhausted' "].)
Here, it is undisputed that the prosecution did not timely comply with its discovery obligations. However, the record discloses that the trial court offered a continuance to the defense as a remedy. Defendant did not take the offer. Nor did she request a jury instruction relating to the late disclosure. Accordingly, because defendant failed to exhaust other available sanctions, we find no basis for reversal.
C. Admission of Domestic Violence Propensity Evidence
As an initial matter, we conclude that defendant has forfeited her claim that the trial court erred in admitting domestic violence propensity evidence under Evidence Code section 352. At no point did defendant object to the prosecutor introducing evidence about the details of her prior uncharged acts of domestic violence on the ground that the probative value of such evidence was substantially outweighed by its prejudicial effect. Defendant moved in limine to exclude "other crime" evidence in general and requested that the prosecution be required to identify any such evidence so that its admissibility could be litigated prior to trial. Defendant went on to argue that her rap sheet was inadmissible on multiple grounds, including under Evidence Code section 352. However, defendant's motion did not specifically argue that evidence regarding the details of her prior acts of domestic violence was inadmissible under Evidence Code section 352. When the prosecutor asked the trial court for permission to present such evidence at the pretrial hearing, defendant did not object on the ground the evidence was inadmissible under Evidence Code section 352. Under these circumstances, defendant has forfeited her claim by failing to specifically object on the grounds she now raises on appeal. (People v. Partida (2005) 37 Cal.4th 428, 435.)
But even if defendant had not forfeited her claim, we conclude it lacks merit. Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. (Evid. Code, § 1101.) The Legislature, however, has created an exception to this rule in criminal domestic violence cases. (Evid. Code, § 1109; People v. Brown (2011) 192 Cal.App.4th 1222, 1232 (Brown).) In those cases, the Legislature has concluded that the policy considerations favoring admitting evidence of uncharged domestic violence offenses outweigh the policy considerations favoring excluding such evidence. (Brown, supra, at p. 1232.) "[Evidence Code s]ection 1109, in effect 'permits the admission of defendant's other acts of domestic violence for the purpose of showing a propensity to commit such crimes. [Citation.]' [Citations.]" (Brown, supra, at p. 1233.) "The admission of prior acts as propensity evidence encompasses both charged and uncharged acts. [Citations.]" (Ibid.)
"Even if the evidence is admissible under [Evidence Code] section 1109, the trial court must still determine, pursuant to [Evidence Code] section 352, whether the probative value of the evidence is substantially outweighed by the probability the evidence will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. [Citation.] The court enjoys broad discretion in making this determination, and the court's exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (Brown, supra, 192 Cal.App.4th at p. 1233.)
" 'The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense.' " (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274 [discussing Evid. Code, § 1108 concerning the admission of uncharged sexual offenses, which is similar to Evid. Code, § 1109]; People v. Johnson (2008) 164 Cal.App.4th 731, 739 [noting Evid. Code, §§ 1108 & 1109 are virtually identical].)
Evidence is unduly prejudicial under Evidence Code section 352 where it uniquely tends to evoke an emotional bias against the defendant while having little effect on the issues. It is also prejudicial if it invites the jury to prejudge a person or cause on the basis of extraneous factors. (People v. Johnson (2010) 185 Cal.App.4th 520, 534.) " 'Painting a person faithfully is not, of itself, unfair.' [Citation.]" (Ibid.) "Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s). [Citations.]" (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
Defendant does not argue that the prior uncharged acts do not qualify as domestic violence. Instead, she argues that the trial court prejudicially erred in admitting evidence of these acts under Evidence Code section 352. We disagree. After considering both the probative value of the evidence and its prejudicial effect, we conclude the trial court did not abuse its discretion in admitting the evidence.
As set forth above, the trial testimony showed that defendant would physically attack Martin after becoming angry with him. The prior uncharged acts of domestic violence that occurred in Nevada in 2010 were similar in nature to the current domestic violence charge, tending to show defendant's propensity to become physically violent with Martin after arguing with him. The prior acts, therefore, were highly probative of the pattern of conduct defendant engaged in with Martin during their tumultuous relationship. In each instance, defendant would become angry with Martin and then physically attack him. The prior instances of domestic violence were not remote in time and involved the same victim—Martin. The testimony describing the prior acts was not more inflammatory than the testimony describing the current domestic violence charge, which involved defendant forcefully entering Martin's wife's residence and attacking both Martin and his wife with a knife. (See People v. Tran (2011) 51 Cal.4th 1040, 1047 [potential for prejudice is decreased "when testimony describing the defendant's uncharged acts is no stronger or more inflammatory than the testimony concerning the charged offense"].) Also weighing in favor of admissibility, evidence of the incident at the casino came from an independent source—the security guard eyewitness. (People v. Johnson, supra, 185 Cal.App.4th at p. 533 [evidence of prior assaults from independent sources reduces the danger of fabrication].) Finally, nothing in the record suggests the jury would be confused or misled by the prior acts of domestic violence. The evidence of the prior acts was not extensive and the prior acts were sufficiently distinct in time and nature that there was no risk the jury would confuse them with the charged act of domestic violence. (Ibid.) On this record, we find no evidentiary error.
Evidence Code section 1109 creates a presumption that prior acts occurring within 10 years of the charged offense are not too far removed in time. (Evid. Code, § 1109, subd. (e).) Here, the prior uncharged acts of domestic violence occurred in 2010 while the acts giving rise to the current domestic violence charge occurred in 2015. Defendant does not contend, and we do not find, that the uncharged acts were too remote in time to be probative.
Because we find no evidentiary error, we need not, and do not, address the People's harmless error argument.
Defendant contends that admission of the domestic violence propensity evidence was unnecessary because Martin testified at length regarding the charged offenses and his volatile relationship with defendant. Defendant further contends that this evidence was highly prejudicial and inflammatory because it is the type of evidence that encourages jurors to infer that " 'if she did it before, she must have done it again.' " These issues are not relevant considerations in determining whether the trial court erred in admitting the evidence under Evidence Code section 352. They are more appropriately addressed in consideration of the legislative intent of Evidence Code section 1109. In enacting the statute, the Legislature found that evidence of prior acts in domestic violence cases is particularly probative in demonstrating the propensity of the defendant. " ' "The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked." ' [Citations.]" (People v. Cabrera (2007) 152 Cal.App.4th 695, 705-706.)
D. CALCRIM No. 852
Over defense counsel's objection, the jury was instructed with CALCRIM No. 852, which is the pattern jury instruction on domestic violence propensity evidence. To exhaust her state remedies and to preserve her right to challenge CALCRIM No. 852 on constitutional grounds in federal court, defendant raises the constitutional arguments here. Defendant claims the instruction violates her constitutional rights to due process and a fair trial. She acknowledges, however, that state law precedent "likely precludes this claim in California's courts."
In People v. Falsetta (1999) 21 Cal.4th 903, our California Supreme Court upheld Evidence Code section 1108, which is nearly identical to Evidence Code section 1109, against a similar constitutional challenge, finding the statute did not violate due process because it incorporated a careful weighing process under Evidence Code section 352 before such propensity evidence could be admitted. (People v. Falsetta, supra, at p. 917.) By parity of reasoning, several appellate courts, including this court, have found Evidence Code section 1109 constitutional. (See, e.g., People v. Johnson (2000) 77 Cal.App.4th 410, 417; People v. Brown (2000) 77 Cal.App.4th 1324, 1328-1329; People v. Johnson, supra, 185 Cal.App.4th at p. 529.)
In People v. Reliford (2003) 29 Cal.4th 1007, 1016, the California Supreme Court ruled CALJIC No. 2.50.01, an instruction explaining the application of Evidence Code section 1108, was constitutionally valid because it was not "reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lower standard of proof." Appellate courts have relied on the analysis in Reliford to uphold the constitutionality of the corresponding CALJIC instruction, CALJIC No. 2.50.02, which explains the use of domestic violence propensity evidence under Evidence Code section 1109. (See, e.g., People v. Pescador (2004) 119 Cal.App.4th 252, 261-262.) This court, in turn, has found that "there is no material difference between the language found constitutional in CALJIC No. 2.50.02 and that in CALCRIM No. 852." (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) In so finding, we have rejected the argument that CALCRIM No. 852 violates an accused's due process rights. We do so again here.
II
Prior Domestic Violence Conviction Allegation
Defendant contends the trial court's finding that she suffered a prior domestic violence conviction within the meaning of section 273.5, subdivision (f)(1) must be stricken because the finding is not supported by substantial evidence. Alternatively, she contends the matter must be remanded for a proper factual finding regarding the truth of the prior conviction. The People agree that there is insufficient evidence to support the trial court's true finding on the prior domestic violence conviction allegation. The People assert that remand to permit a retrial on the allegation is the proper remedy. We will strike the true finding on the prior domestic violence conviction allegation and remand to allow the People the opportunity for retrial.
A. Additional Background
The amended information charged defendant in count three with willful infliction of corporal injury resulting in a traumatic condition upon a former cohabitant. (§ 273.5, subd. (a).) As to count three, it was also alleged that defendant had suffered a prior conviction for domestic violence within the meaning of section 273.5, subdivision (f)(1). At trial, defendant waived her right to a jury trial on the prior conviction allegation and requested a court trial. The trial court granted defendant's request.
During a discussion about jury instructions, the People's exhibit 17, a document from the "Municipal Court of Elko Township, County of Elko, State of Nevada court record CR-2010-0770," was marked for identification but was not admitted into evidence. The record discloses that the document was marked for use at the bifurcated trial.
After the jury rendered its verdicts, including a guilty verdict on count three, the trial court stated that the court trial on the prior domestic violence conviction allegation would be held immediately prior to sentencing. At the outset of the sentencing hearing, the following exchange occurred:
"THE COURT: . . . We are here for pronouncement of judgment and sentence. . . . [¶] Before we get there, we have one matter to take care of. [Prosecutor], we hadn't handled the matter of the prior yet.
"[DEFENSE COUNSEL]: Correct.
"THE COURT: The prior DV, we hadn't handled that.
"[PROSECUTOR]: Hadn't handled it in what sense?
"THE COURT: In the sense that we don't have an admission, we don't have a trial, we don't have a stipulation. We have nothing regarding that prior.
"[PROSECUTOR]: I thought we did stipulate.
"[DEFENSE COUNSEL]: We stipulated that the Court could hear the prior based on the submitted information related to the testimony and related to the documentation. And I'm prepared to submit on that.
"THE COURT: Well, okay. We had not done that. Or at least I had not done my part. Maybe you guys had.
"[PROSECUTOR]: Maybe amongst us we had that discussion.
"THE COURT: I'll accept that stipulation and based upon that and the other records that we have that came out during the trial and also as indicated in the probation report, I am going to find that the prior DV—now, we're talking about the DV from Nevada; is that right?
"[PROSECUTOR]: Yes, Your Honor.
"THE COURT: I'm going to find that allegation true. So there is a prior DV, and of course that would affect the triad obviously."
B. Analysis
Our review of the record discloses that defendant did not admit or stipulate that she suffered a prior domestic violence conviction within the meaning of section 273.5, subdivision (f)(1). The record further discloses that the People's exhibit 17 purporting to show defendant did in fact suffer such a conviction was not admitted into evidence during the jury trial or the bifurcated proceeding on the prior conviction allegation. Because there is no substantial evidence in the record supporting the trial court's finding on the prior domestic violence conviction allegation, we will strike the trial court's finding and remand this matter for further proceedings. On remand, the prosecutor may elect to retry the prior domestic violence conviction allegation. (People v. Golde (2008) 163 Cal.App.4th 101, 113; see also People v. Barragan (2004) 32 Cal.4th 236, 239 [retrial of a prior conviction allegation is permissible where a trier of fact finds the allegation to be true, but an appellate court reverses that finding for insufficient evidence].) If the People elect not to retry the matter, the court must resentence defendant without the prior conviction.
III
Sentencing Error
Defendant contends the trial court imposed an unauthorized sentence on count three—the corporal injury offense. According to defendant, because the trial court stated that it was imposing a low-term sentence for this offense, it was error for the trial court to impose a three-year sentence, since a low-term sentence for this offense is two years. Defendant maintains that the proper remedy is to order the trial court to prepare an amended abstract of judgment reflecting a two-year sentence on count three. The People agree that the trial court imposed an unauthorized sentence on count three but argue that remand for resentencing is the appropriate remedy. We will vacate defendant's sentence and remand for resentencing.
A. Additional Background
Prior to sentencing, the probation department filed a report recommending the trial court impose an aggregate sentence of twelve years four months, which included an upper-term sentence of five years on the corporal injury offense, plus an additional five years total for the enhancements attached to this offense. The People's sentencing brief requested the same sentence recommended by probation. Defendant's statement in mitigation requested probation.
The probation department's recommended sentence on the corporal injury offense was based on the assumption that the prior domestic violence conviction allegation would be found true. After the jury rendered its verdicts, counsel agreed that the court trial on the prior conviction allegation would take place immediately before sentencing. The trial court directed the probation department to draft its sentencing recommendation to reflect a true finding on the prior domestic violence conviction allegation. --------
At the outset of the sentencing hearing, the trial court found the prior domestic violence conviction allegation true. In doing so, the court noted that such a finding would affect the sentencing triad for this offense. Following a discussion of the appropriate sentence, the trial court denied defendant's request for probation. The court then stated, in relevant part, as follows:
"[Defendant is] not . . . the kind of threat to society that we normally see with these predatory criminals who we then sentence accordingly. And so I think there are some mitigating facts related to her as we have been discussing.
"So I think that the 12 year, 4 months sentence that is recommended by probation is a little bit too much. But I think what [defense counsel] wants to do is [not] commensurate with what happened in this case.
"So based upon these circumstances, the couple of points I made here regarding the fact that her history is such, so here's what I'm going to do. I'm going to sentence her
"By the way, let me note also that she's never been to state prison. I'll note that. And I note that the victims and others hope that she gets some treatment to deal with her violent tendencies.
"So here's what I'll do. On [the] principal term, which is Count Three, I'm going to sentence her to the low term of three years state prison, low term on a GBI[,] enhancement that's [three years,] and then one year on the knife. The arming enhancement. So total of seven years on Count Three.
"On Count One, I'm going to sentence her to one-third the middle, that will be 16 months. Also then consecutive. On Count Two, it will be three years, that will be mid term, and I'm going to run that concurrent on Count Two. It happened at the same time as Count Three, and I think on that basis even though they are separate offenses, but I think I'm going to exercise my discretion to run that in fact concurrent. Then on Count Four, it will be again the mid term, that will be four years but that will be stayed under [section] 654.
"So the total aggregate time will be 8 years and 4 months state prison. And I think under [defendant's] circumstances, I think that is a fair sentence to impose."
B. Analysis
Section 273.5, subdivision (a) provides that a person convicted of corporal injury to a spouse shall be punished by imprisonment in the state prison for two, three, or four years. Section 273.5, subdivision (f)(1) provides: "Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a), or subdivision (d) of Section 243, or Section 243.4, 244, 244.5, or 245, shall be punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years . . . ."
Here, the jury found defendant guilty of violating section 273.5, subdivision (a), and the trial court found true the allegation she had a prior domestic violence conviction within the meaning of 273.5, subdivision (f)(1). As a consequence, defendant was subject to the aggravated triad of two, four, or five years on the corporal injury offense. Therefore, the trial court's imposition of a three-year sentence on that offense was unauthorized. (People v. Scott (1994) 9 Cal.4th 331, 354 [a sentence is unauthorized "where it could not lawfully be imposed under any circumstance in the particular case [such as] where the court violates mandatory provisions governing the length of confinement"].) In light of our conclusion, we will vacate defendant's sentence and remand the matter for resentencing. Following further proceedings on the prior domestic violence conviction allegation, the trial court shall select a term for the corporal injury offense from the applicable triad.
DISPOSITION
The sentence is vacated and the matter is remanded to the trial court for further proceedings on the prior domestic violence conviction allegation, and for resentencing. Following resentencing, the court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Renner, J.