People v. Reynolds

THE PEOPLE, Plaintiff and Respondent, v. BRIAN THOMAS REYNOLDS, Defendant and Appellant.

F076190

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

February 9, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. Nos. CRF48393, CRF50084, CRF50586, CRF52089)

OPINION

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge.

Jin H. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Daniel B. Bernstein, and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

In Tuolumne County Superior Court case No. CRF48393 (case No. CRF48393), defendant Brian Thomas Reynolds pled guilty to theft and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) and admitted he was previously convicted of a qualifying "strike" offense under the Three Strikes law (Pen. Code,¹ § 667, subds. (b)-(i)).

In Tuolumne County Superior Court cases Nos. CRF50084 (case No. CRF50084) and CRF50586 (case No. CRF50586), which were consolidated, a jury convicted defendant of two counts of failure to appear in court while released on bail (§ 1320.5). With regard to case No. CRF50084, the jury found true the allegation defendant committed the first violation while released on bail in case No. CRF48393 (§ 12022.1). With regard to case No. CRF50586, it found true the allegation he committed the second violation while released on bail in case No. CRF50084. In a bifurcated proceeding, defendant admitted he was previously convicted of a qualifying "strike" offense (§ 667, subds. (b)-(i)) and served five prior prison terms (§ 667.5, subd. (b)).

In Tuolumne County Superior Court case No. CRF52089 (case No. CRF52089), a jury convicted defendant of criminal threats (§ 422, subd. (a) [count I]) and willful infliction of corporal injury on a cohabitant (§ 273.5, subd. (a) [count IV]) and found true the allegations he committed these offenses while released on bail in cases Nos. CRF48393 and CRF50084 (§ 12022.1).² In a bifurcated proceeding, the trial court found defendant was previously convicted of a qualifying "strike" offense (§ 667, subds.(b)-(i)), was previously convicted of a serious felony (§ 667, subd. (a)(1)), and served five prior prison terms. (§ 667.5, subd. (b)).

On July 12, 2017, defendant was sentenced on all four cases. He received an aggregate term of 28 years four months.

Specifically, in case No. CRF52089, the trial court imposed a sentence of 22 years four months: a doubled upper term of eight years, plus four years for two on-bail enhancements and four years for four prior prison term enhancements, on count IV;³ and a doubled one-third middle term of 16 months, plus five years for a prior serious felony enhancement, on count I.⁴ The court also assessed a $6,600 restitution fine (§ 1202.4) and stayed a parole revocation restitution fine pending successful completion of parole (§ 1202.45).

In case No. CRF48393, per stipulation, the court imposed a doubled one-third middle term of 16 months to run consecutively to defendant's sentence in case No. CRF52089. It also assessed a $300 restitution fine (§ 1202.4) and stayed a parole revocation restitution fine pending successful completion of parole (§ 1202.45).

In case No. CRF50084, the court imposed a doubled one-third middle term of 16 months to run consecutively to defendant's sentence in case No. CRF52089.⁵ It also assessed a $300 restitution fine (§ 1202.4) and stayed a parole revocation restitution fine pending successful completion of parole (§ 1202.45).⁶ In case No. CRF50586, the court imposed a sentence of three years four months to run consecutively to defendant's sentence in case No. CRF52089: a doubled one-third middle term of 16 months, plus two years for an on-bail enhancement. It also assessed a $900 restitution fine (§ 1202.4) andstayed a parole revocation restitution fine pending successful completion of parole (§ 1202.45).

Defendant appeals from the judgments entered in all four cases. In his opening brief, he makes numerous arguments. First, one or both of defendant's failure-to-appear convictions must be reversed because (1) the trial court gave an improper instruction to the jury; (2) his attorney rendered ineffective assistance by failing to object on several occasions; and (3) the cumulative effect of these errors deprived him of due process. Second, his conviction for willful infliction of corporal injury on a cohabitant must be reversed because the court (1) erroneously admitted into evidence the victim's testimonial statements to the police; and (2) failed to instruct the jury on the lesser included offense of misdemeanor battery of a cohabitant. Third, the court improperly imposed more than two on-bail enhancements. Fourth, in view of a recent amendment to sections 667, subdivision (a), and 1385, enacted by Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill No. 1393) (Stats. 2018, ch. 1013, §§ 1-2, eff. Jan. 1, 2019), the case must be remanded to afford the court an opportunity to exercise its sentencing discretion as to the prior serious felony enhancement. Finally, before imposing any fines, the court should have conducted an ability-to-pay hearing pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).

In the respondent's brief, the Attorney General agrees only two on-bail enhancements were authorized and a remand for reconsideration of sentencing in light of Senate Bill No. 1393 is appropriate. We accept these concessions. For the reasons set forth below, we affirm the convictions. Because the case must be remanded for resentencing, defendant's Dueñas argument is moot.

In a supplemental brief, defendant asks us to strike the four prior prison term enhancements in view of a recent amendment to section 667.5, subdivision (b), enacted by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136) (Stats. 2019,ch. 590, § 1, eff. Jan. 1, 2020). The Attorney General concurs. We accept this concession.

STATEMENT OF FACTS

I. Case No. CRF48393

The prosecution provided—and the trial court accepted—the following factual basis for defendant's guilty plea:

"On or about October 6th of 2015, . . . defendant, while in the County of Tuolumne, was in possession and did drive a vehicle, [a] 1993 Honda motorcycle, that did not belong to him, and did so without the owner's consent."

II. Cases Nos. CRF50084 and CRF50586

The trial court granted the prosecution's request to judicially notice several minute orders, two bail bonds, and an arrest warrant.

Defendant was present at a March 16, 2016 hearing in connection with case No. CRF48393. He was ordered to appear in court again on March 25, 2016, but failed to do so. A bench warrant was issued. Defendant subsequently made an appearance on April 13, 2016.

On May 13, 2016, defendant was arrested in connection with case No. CRF50084. A bail bond executed on May 14, 2016, indicated he was ordered to appear in court on May 27, 2016. Defendant did not make an appearance until September 1, 2016.

The parties agreed to the following stipulation:

"On March 23, 2016, at 10:42 p.m., . . . defendant . . . arrived at Marshall Medical Center Emergency Room, 1100 Marshall Way, Placerville, CA 95667. He was admitted into the hospital at 4:32 a.m. on March 24. He stayed there until he was discharged at 10:10 p.m. on March 24. His residence is in Placerville."

III. Case No. CRF52089

a. Prosecution's case-in-chief

i. Howard B.⁷

On May 31, 2016, Howard noticed "a young lady" sitting on a bench next to his front doorstep. She was "very distressed and hurt"; she was "bent over," "was crying," and "had her face covered with her hands." Howard observed redness on her face and bruises on her arms. He asked her what had occurred and she stated, "her boyfriend had dumped her off out there after beating her up." She said she had been "pistol whipped." She also told Howard her boyfriend was heading to a mobilehome park in Jamestown in a green pickup truck and provided a license plate number. Howard phoned 911 and reported the incident. Law enforcement arrived at his house less than 15 minutes later.

ii. Kevin L.

Kevin arranged to have defendant and his girlfriend come to his mobilehome "[t]o do some work," namely, "[h]ousecleaning and whatever [he] could find for [them] to do." On May 31, 2016, defendant came to Kevin's residence alone in a green pickup truck. He told Kevin he and his girlfriend "were arguing" and he "dropped her off." Defendant left the property sometime after deputies arrived.

iii. Deputies Sandelin and Lockhart

On May 31, 2016, Tuolumne County Sheriff's Deputies Sandelin and Lockhart were dispatched to the mobilehome park. Sandelin located the green pickup truck in Kevin's driveway and spoke with Kevin. With Kevin's consent, the deputies searched the property. Outside, Lockhart "found a space on the back fence where . . . some bamboo privacy fencing material had been pulled apart" and "there w[ere] [shoe-shaped] disturbance[s] in the grounds indicating somebody had climbed over the fence in thatarea." In the truck, Lockhart found a loaded air rifle, pellets, and a cell phone. He picked up the phone and noticed "the screen was lit and active" and appeared to be recording audio for "around an hour and 44 minutes." This recording was subsequently extracted.

iv. Deputy Leyva

On May 31, 2016, Tuolumne County Sheriff's Deputy Leyva was dispatched to Howard's home, where he saw the victim "sitting on a chair near the front door" and "crying...