Filed 1/19/16 P. v. Sylvester CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067157

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD253406)

MICHAEL HONG SYLVESTER,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Melinda

Lasater, Judge. Affirmed in part; reversed in part with directions.

         Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M.

Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

         Michael Hong Sylvester was charged with eight counts in a third amended

consolidated information and a jury convicted him of the following: two counts of
inflicting injury to a member of a dating relationship (counts 3 & 7) (Pen. Code, § 273.5,

subd. (a));1 two counts of assault by means of force likely to produce great bodily injury

(counts 4 & 8) (§ 245, subd. (a)(4)); and one count of making a criminal threat (count 6)

(§ 422). As to counts 7 and 8, the jury found Sylvester committed the offenses while he

was released from custody on bail pending final judgment on an earlier felony offense

(§ 12022.1, subd. (b)), and he personally inflicted great bodily injury under circumstances

involving domestic violence (§ 12022.7, subd. (e)). The jury was unable to reach a

verdict on the remaining three counts (counts 1, 2 & 5). The court declared a mistrial on

those counts and granted the prosecution's motion to dismiss them and to strike deadly

weapon allegations under count 6. The court found Sylvester had a prior serious felony

conviction (§ 667, subd. (a)(1) and a prior strike conviction (§ 667, subds. (b)-(i)). After

denying Sylvester's motion for a new trial and motion to dismiss his prior strike

conviction allegation, the court sentenced Sylvester to 19 years in prison. The court also

issued a criminal protective order prohibiting Sylvester from having contact with victims

Natalia Adame and Jennifer Johnson, and his and Adame's daughter Alina S.

       Sylvester contends (1) he is entitled to be resentenced because the trial court did

not act with informed discretion when it sentenced him; (2) the court erred in allowing

the prosecution to file the third amended information alleging a prior conviction after the

jury had begun deliberations; (3) the court erred by not staying the sentence on his

conviction of making a criminal threat under section 654; and (4) the criminal protective


1      All statutory references are to the Penal Code unless otherwise specified.

                                              2
order barring him from contacting his and Adame's child Alina S. must be stricken

because there is no statutory authority for the order and it violates his federal

constitutional right to due process. We reverse the order allowing the prosecution to file

the third amended information and remand with directions to reconsider that matter and

to remove Alina S. from the protective order. We otherwise affirm the judgment.

                                           FACTS

                  Convictions Involving Victim Adame (Counts 3, 4 & 6)

       In January 2014, Sylvester was living in an apartment with his girlfriend, Natalia

Adame, then nine months pregnant with their daughter, Alina. In the early morning

hours of January 8, 2014, the woman who lived in the apartment below Sylvester and

Adame was awakened by yelling, screaming and what sounded like "throwing things"

above her. She heard a male voice that "sounded like rage" and a high-pitched,

frightened female voice "begging him[,]" " 'I didn't do it. Please stop. I didn't do it.' "

       Adame left the apartment and drove to her parents' house. Adame's father testified

Adame "had been beaten about the face and her eyes." Her eyes were almost shut, blood

was coming out of her mouth, and her shirt was stained with blood. She told her parents

Sylvester had grabbed a knife and told her he was going to kill her.

       Adame testified she called 911 from her parents' house because her parents told

her to and her "face was kind of banged up and [she] was nine months pregnant." Adame

told the 911 operator she had just left her house because her boyfriend "beat [her] up."

She said Sylvester had slapped her "like eight times[,]" and the whole side of her face



                                              3
was swollen. She also told the operator Sylvester pulled a knife on her and said he was

going to kill her.

       A police officer arrived at Adame's parent's house in response to Adame's 911 call

at 7:30 a.m. Adame was crying and her face was swollen, bruised, and bloody. She was

wiping blood from her mouth and there was blood on her shirt. The officer immediately

radioed for paramedics.

       Adame told the officer she had tried to wake Sylvester but he would not wake up.

When he finally did wake up, he was angry because he was going to be late for work.

Sylvester started yelling at her and slapping her across the face. He slapped her about

eight times and then punched her right ear, which caused her to fall. Sylvester repeatedly

told Adame he was going to kill her. He picked up a plastic bag and put it in her mouth

to suffocate her while saying he was going to kill her. As he was forcing the bag into her

mouth, Adame fought back and bit his hand. The bite caused him to withdraw his hand

and enabled Adame to get the bag out of her mouth. Sylvester picked up a t-shirt and

tried to strangle her with it, but she fought him off. He then produced a hunting knife and

lunged at her several times with the knife. She was able to get away from him and drive

to her parents' house.

       Adame told the officer and testified at trial that during the altercation, Sylvester

told her he was going to kill her baby by kicking her in the stomach. Sylvester also told

her he was going to send someone over to her brother's house to kill him.

       A firefighter paramedic who arrived at her parents' house to treat her injuries on

the morning of the incident testified Adame was distraught and sobbing when he arrived,

                                              4
and "[o]bviously looked like she had been abused or assaulted." Adame told the

paramedic her boyfriend struck her multiple times on the face with his hands because she

did not wake him up, and he threw her to the ground.

       A short while later, an ambulance paramedic arrived at Adame's parents' house

and assessed Adame's condition. The paramedic observed Adame's face was extensively

bruised and "very, very swollen," especially her right ear, cheek, and lips. Adame told

the paramedic Sylvester became upset with her because she did not wake him. She said

he punched her several times in the face with his fists and threatened to harm her baby by

kicking her in the stomach. He also pulled out a knife and attempted to stab her, but was

unsuccessful. The paramedic transported Adame to a hospital.

       A detective with expertise in strangulation interviewed Adame two days after the

incident. The detective testified a common sign of strangulation is a petechial

hemorrhage, which is a bursting of capillaries visible in the white of the eye or eyelid.

The detective observed a petechial hemorrhage in the white of Adame's left eye.

       Adame told the detective the altercation started when she did not wake Sylvester

for work on time and he became angry. Sylvester took a white t-shirt and wrapped it

around her neck. Adame was able to get the t-shirt off of her fairly quickly, but Sylvester

then began to strangle her with his hands. Adame told the detective that on a scale of

zero to 10 with 10 being severe, the pressure applied to her neck and the pain she

experienced were both at a level 10. At some point during the struggle, Sylvester put a

plastic bag over Adame's nose and mouth for between five and 10 seconds. He said to



                                             5
Adame, "I'm going to kill you." She was unable to breathe and thought she was going to

die. Sylvester had strangled her with his hands on two previous occasions.

                  Convictions Involving Victim Johnson (Counts 7 & 8)

       Sylvester and Jennifer Johnson began an intimate relationship in October 2013 and

lived together in Johnson's cousin's house in Escondido until they got into an argument

that escalated into a physical fight in early December. After the fight Johnson told

Sylvester to leave and he moved out.

       When Sylvester was arrested for the offenses involving Adame on January 8,

2014, his mother and Johnson bailed him out of jail. Johnson then resumed her dating

relationship with Sylvester and stayed with him in the apartment he had shared with

Adame. Sylvester continued to contact Adame, but he told Johnson he was merely

pretending to be in a relationship with Adame so she would drop the charges against him.

       On February 5, 2014, Sylvester and Johnson got into a lengthy argument about

Sylvester's relationship with Adame. Johnson accused Sylvester of lying about not

actually being in a relationship with Adame and asked him for the truth. She became

upset and started yelling at Sylvester when he refused to let her see a text message he had

received from Adame. At one point during the argument, Johnson grabbed Sylvester's

phone and threw it out of a sliding door toward some bushes. Johnson testified that

Sylvester became enraged and started punching her in the face "very, very fast and very

hard" in a "whirlwind of punches." She fell to the ground and Sylvester pulled her up,

put his arm around her neck in a choke hold, and started choking her. Johnson "started

seeing black" and was unable to breathe. She thought she was going to die. Sylvester

                                             6
loosened his hold and Johnson tried to run, but Sylvester grabbed her and started choking

her again. When Sylvester loosened his hold a second time, Johnson grabbed her purse

and phone and ran out of the apartment. She hid behind a bush in front of the apartment

and called 911.

         Johnson told the 911 operator Sylvester had punched her in the jaw and it felt like

it was broken. The pain on the left side of her face was excruciating. When the police

arrived, they asked Johnson if she wanted medical attention, but she asked them to take

her home because she did not have medical insurance and did not want emergency room

bills.

         The next morning her face was extremely swollen and she could not open her

mouth. She went to an emergency room and was admitted to the hospital because her left

jawbone was broken in two places. She was in the hospital for seven days where she

underwent two surgical procedures that involved setting and bracing the fractures and

placing two permanent titanium plates in her jaw to stabilize the bone segments. Six

weeks later she underwent a third procedure to remove temporary braces the surgeon had

placed on her teeth. During that six-week period, Johnson's mouth was wired shut and

she could not eat solid food. She took prescription pain medication and was unable to

work. Johnson's surgery left a scar on the left side of her face and she testified she cannot

feel the left side of her face, chin, and bottom lip.




                                               7
                                       DISCUSSION

                                               I

                 Amendment of Information to Allege a Prior Conviction

       Sylvester contends the court erred in allowing the prosecution to file the third

amended information alleging a prior conviction after the jury had begun deliberations.

       Relevant Proceedings

       On May 14, 1014, the prosecution filed a consolidated complaint that did not

allege Sylvester had a prior strike conviction or serious felony conviction.2 At the

conclusion of the preliminary hearing held that same day, the prosecutor told the court, "I

have obtained some information regarding the defendant's prior criminal history from

Florida that I was previously unaware of and was not considered earlier. The defendant

has been involved in such crimes as robbery, battery, and the list goes on." The

prosecutor explained that he "did not have a copy of [Sylvester's] rap sheet from Florida

until recently." The court reviewed a pretrial services report and noted that "information

about any incidents in Florida was not included in the . . . [r]eport."

       On July 3, 2014, the prosecution filed a second amended consolidated information,

which did not allege any prior convictions. On July 7, 2014, the parties appeared before

Judge Lewis regarding a change of plea. Sylvester had signed a change of plea form to

plead guilty to two strikes with a stipulated prison term of eight years. The prosecutor

told the court, "There is an issue potentially with a prior conviction the People are still


2      The parties stipulated that the consolidated complaint be deemed the information.

                                              8
not fully aware of. I believe the defendant was a juvenile in Florida. That's an issue

[defense counsel] and I will need to discuss. Other than that, he is willing to plead guilty

to what the offer was without the consideration of that prior."

       After a break in the change of plea hearing, defense counsel informed the court

that Sylvester had changed his mind about pleading guilty. Counsel stated, "Mr.

Sylvester has indicated he is not interested in taking deals. What he is interested in doing

is hiring private counsel." The court held a Marsden3 hearing and denied Sylvester's

request to change counsel.

       The prosecutor then stated, "I would . . . like to make a record that the People had

made the defendant an offer of pleading to two strikes with [a] stipulated term of eight

years. [¶] That offer is now withdrawn. There is no offer. And I have made it clear to

defense counsel that there is the possibility of an additional . . . prior that we are still

looking into. We will continue to look into that. Whether or not that is something we

can allege is yet to be determined." The court asked Sylvester, "Do you understand

that?" Sylvester replied, "No, not really–a prior?" Sylvester's counsel then conferred

with Sylvester off of the record.

       On July 8, 2014, the day of trial, the prosecutor filed a trial brief in which he

stated, under the heading "Possible Forthcoming Amended Charging Document," that the

prosecution had put Sylvester and his counsel "on notice that the People will move to

amend the current charging document if and when the People receive documentary



3      People v. Marsden (1970) 2 Cal.3d 118.
                                                9
confirmation of [Sylvester's] adult conviction in the state of Florida." The trial brief

stated that the conviction likely qualifies as a prior serious felony conviction and a prior

strike conviction under the relevant California statutes. The brief further stated: "The

People are awaiting the arrival of court-certified documentation from the Court in

[Florida], but have yet to receive the documents. Upon arrival of the documents, the

People will review whether or not [Sylvester's] conviction can be alleged under the

above-named sections in the present case."

       The parties appeared before Judge Lasater and Sylvester was arraigned on the

second amended consolidated information, which did not allege any prior convictions.

Regarding the prior conviction, the prosecutor informed the court he had been discussing

with the defense the possibility that he would seek leave to amend the information to

allege the prior Florida conviction, and that he was working on getting the necessary

documents from Florida. The prosecutor explained there had been a tentative plea

agreement with Sylvester the preceding week and the parties had appeared before Judge

Lewis the previous day to enter the plea in open court, but Sylvester declined to enter into

the agreement. Consequently, the prosecutor informed Judge Lewis that he would

continue to pursue the paperwork regarding the Florida conviction and would seek leave

to amend the information to allege a prior serious felony conviction and prior strike

conviction if and when he obtained it.

       Trial commenced before Judge Lasater on July 8, 2014. On July 14, the

prosecution filed the third amended consolidated information, which added the prior

serious felony and prior strike conviction allegations arising from Sylvester's March 2009

                                             10
conviction in Florida. After the jury began deliberations, counsel and the court addressed

Sylvester's objection to the third amended information. Sylvester's counsel argued that

the defense was not on notice of the prosecution's intent to allege the prior conviction

until July 3, 2014, the original trial date, and counsel did not receive the paperwork

revealing what the prior conviction was until July 8. Consequently, Sylvester was not on

notice during plea negotiations of the possibility that the prior Florida conviction would

be used against him as a strike conviction in California and result in "an entirely different

maximum outcome or a significantly higher outcome." Counsel contended Sylvester

would be severely prejudiced if the court "were to allow an amendment at this time

literally after the closings have been made when Mr. Sylvester prior to trial was unaware

that a conviction out of Florida would be used as a strike."

       The prosecutor responded that he had apprised defense counsel of his attempts to

obtain necessary information about Sylvester's prior conviction from Florida during plea

negotiations and that on July 3, 2014, the prosecution and defense had reached a "final

agreement" that if Sylvester signed a change of plea form pleading guilty to two counts–

one count of assault with a deadly weapon against Adame and one count of inflicting

injury to a member of a dating relationship against Johnson–with an out-on-bail

enhancement and great bodily injury enhancement, the prosecution would stipulate to a

prison term of eight years and would not pursue obtaining documentation on Sylvester's

prior Florida conviction.

       As noted, Sylvester signed the change of plea form and the parties appeared before

Judge Lewis to enter the change of plea on the record on July 7, but Sylvester at that

                                             11
point decided not to enter into the plea agreement. The prosecutor stated to Judge

Lasater: "We were sent back to Department 11 in front of Judge Lewis and at that point

in time I stated on the open record that we had discussed this prior conviction from

Florida and that if [Sylvester] was not going to accept the deal that had been agreed upon

the prior week, that I would be pursuing obtaining that documentation from Florida and

that if and when it arrived, I would review it, and I would add it onto the charging

document. And Judge Lewis on the record talked to the defendant about that, and I don't

know if the court reporter in Department 11 recorded it or not but the defendant said out

loud, oh, something to the effect of . . . that strike prior from Florida, and he shrugged his

shoulders. [¶] Judge Lewis indicated that what the possible effects would be that a strike

prior and a [serious] felony prior could be added on."

       The prosecutor summarized: "Defense counsel was aware that this was out there.

I was not aware of what the extent of the details were, and I took a measured approach at

how to address it. I wanted to make sure that it was clear to everybody that this was

something that could be added when the defendant decided not to proceed with the

change of plea on Monday, July 7th. Judge Lewis reiterated on the record, and it was

obvious to me that [defense counsel] and his client had discussed it because they had a

conversation out loud about the prior conviction. [¶] And so having seen that, having

Judge Lewis inform him, having included it in my trial brief, having discussed this

throughout this week, I don't believe anybody can claim they weren't on notice."

       Sylvester's counsel responded, "I'm not sure–I was obviously in court on the 7th. I

don't remember Judge Lewis necessarily saying that there was going to be an

                                              12
amendment. I think she said something along the lines of: Do you understand what he's

saying and that's about it. But that's neither here nor there. [¶] At the end of the day I

don't think the issue is so much that there was notice regarding the addition to this case so

much as–well, let me back up. The issue at the end of the day is there was no real

discussion about adding any kind of strike until just before trial. I wasn't provided

documentation that even allowed me to investigate the issue until the 8th. [¶] While there

had been discussion about an arrest and I was able to discuss the issue with my client, my

client who, once again, was never told that anything out of . . . Florida was a strike since

they don't have the same laws. They didn't have the same notice requirement that people

are told. It's a strike. You'll have enhanced punishment, 80 percent credits. None of that

stuff was discussed at any kind of change of plea."

       The court allowed the prosecution to file the third amended information, stating, "I

am going to allow the amendment. In looking at the totality of the circumstances,

considering the arguments of counsel, I think that it is appropriate to allow it, and I am

going to allow it."

       Relevant Legal Authority

       Section 969a provides: "Whenever it shall be discovered that a pending

indictment or information does not charge all prior felonies of which the defendant has

been convicted either in this State or elsewhere, said indictment or information may be

forthwith amended to charge such prior conviction or convictions, and if such

amendment is made it shall be made upon order of the court, and no action of the grand

jury (in the case of an indictment) shall be necessary. Defendant shall promptly be

                                             13
rearraigned on such information or indictment as amended and be required to plead

thereto." Section 969a permits the prosecution to amend an information to include prior

felony conviction enhancement allegations even after the jury has reached a verdict.

(People v. Valladoli (1996) 13 Cal.4th 590, 594, 609 (Valladoli).)

       "Section 969a expressly gives discretion to our trial judges to permit or deny the

amendment [citation], and we rely in such matters on the prudent exercise of that

discretion to ensure the due process rights of criminal defendants are adequately

protected. In exercising such discretion, courts should scrutinize (i) the reason for the

late amendment, (ii) whether the defendant is surprised by the belated attempt to amend,

(iii) whether the prosecution's initial failure to allege the prior convictions affected the

defendant's decisions during plea bargaining, if any, (iv) whether other prior felony

convictions had been charged originally, and (v) whether the jury has already been

discharged [citation]. This list . . . is intended to be illustrative rather than exhaustive,

and . . . the matter is best left to the discretion of our trial judges." (Valladoli supra, 13

Cal.4th at pp. 607-608, fn. omitted.)

       Although we generally review a trial court's decision to allow an information to be

amended to allege a prior conviction for abuse of discretion, we are mindful that where

" 'fundamental rights are affected by the exercise of discretion by the trial court, . . . such

discretion can only be truly exercised if there is no misconception by the trial court as to

the legal basis for its action.' [Citations.] To exercise the power of judicial discretion, all

material facts and evidence must be both known and considered, together with legal

principles essential to an informed, intelligent and just decision." (People v. Lara (2001)

                                               14
86 Cal.App.4th 139, 165.) In the present case, the trial court's exercise of discretion to

allow the prosecution to amend the information was based on a critical misconception of

material facts regarding the second and third Valladoli factors that our Supreme Court

has directed trial courts to "scrutinize" before permitting such amendment–i.e., whether

the defendant was surprised by the belated attempt to amend and whether the

prosecution's initial failure to allege the prior convictions affected the defendant's

decisions during plea bargaining. (Valladoli supra, 13 Cal.4th at p. 607.)

       The People argue that Sylvester could not have been surprised by the amendment

of the information to allege the Florida conviction because (1) the prosecutor mentioned

at the preliminary hearing that he had "obtained some information regarding [Sylvester's]

prior criminal history from Florida that [he] was previously unaware of and was not

considered earlier[,]" and he was in the process of obtaining reports from Florida; (2) the

prosecutor sent letters dated June 30, 2014, and July 2, 2014, to defense counsel in which

he mentioned his attempts to obtain reports from Florida regarding Sylvester's "robbery

case"; (3) the prosecutor again raised the issue of the Florida prior conviction at the

change of plea hearing, in his trial brief, and before Judge Lasater on the first day of trial.

       Although Sylvester was aware his prior Florida conviction was being discussed

and the prosecutor was considering amending the information to allege it if and when he

obtained certain documents from Florida, the record does not show he was informed that

his prior conviction could be used to enhance his sentence in the present case until the

day of trial when the prosecutor filed his trial brief stating the conviction likely qualifies

as a prior serious felony and a prior strike under California law. Because Sylvester was

                                              15
not on notice of the maximum sentence he potentially faced by going forward with the

trial when he decided to reject the prosecution's plea offer, the prosecution's belated

amendment of the information during trial constituted "surprise" for purposes of

considering whether to allow the amendment.

       Further, the record shows Judge Lasater was misinformed about Sylvester's notice

of the prosecution's intended use of his prior Florida conviction when he rejected the plea

deal before trial. Referring to the change of plea hearing, the prosecutor told Judge

Lasater that Judge Lewis had "on the record talked to the defendant about that, and I don't

know if the court reporter in Department 11 recorded it or not but the defendant said out

loud, oh, something to the effect of . . . that strike prior from Florida, and he shrugged his

shoulders. [¶] Judge Lewis indicated that what the possible effects would be that a strike

prior and a [serious] felony prior could be added on." (Italics added.)

       Sylvester did not refer to his prior conviction as "that strike prior from Florida,"

and Judge Lewis did not mention how a strike prior or serious felony prior could possibly

affect his sentence. The exchange in question between Judge Lewis and Sylvester

occurred immediately after the prosecutor stated that he had withdrawn the plea offer and

there was "the possibility of an additional . . . prior that we are still looking into. We will

continue to look into that. Whether or not that is something we can allege is yet to be

determined." Judge Lewis then asked Sylvester, "Do you understand that?" Sylvester

replied, "No, not really–a prior?" There was no reference by Sylvester or anyone else

during that hearing of a "strike prior" or "serious felony prior." The People acknowledge

in their respondent's brief that "Judge Lewis did not warn [Sylvester] of the possible

                                              16
effects of a prior strike and prior serious felony, at least not on the record." It appears

from the record that at the time of the change of plea hearing the prosecutor had not

obtained sufficient information about Sylvester's Florida conviction to determine whether

the conviction would qualify as a strike prior or serious felony prior.

       Although Judge Lasater's decision to allow the prosecution to amend the

information was not unreasonable considering her misconception of what had occurred in

the previous hearing before Judge Lewis, it was not a proper exercise of judicial

discretion because she did not know all of the material facts. Whether Sylvester had been

informed at the change of plea hearing that the Florida prior conviction could be alleged

as a strike prior or serious felony prior that would substantially increase his prison

sentence was a material fact that Judge Lasater presumably considered in exercising her

judicial discretion to allow the amendment. However, she exercised her discretion under

a misconception regarding that material fact–i.e., the misconception that Sylvester was on

notice that he faced the possibility of sentencing enhancements for a strike prior and

serious felony prior by rejecting the prosecution's plea offer. Given the court's

misconception regarding that material fact, we cannot say the court properly exercised its

discretion in deciding whether to allow the prosecution to amend the information.

(People v. Medina (1980) 107 Cal.App.3d 364, 370 [trial court action taken "without full

knowledge of all the material facts" was an abuse of discretion].) "Failure to exercise a

discretion conferred and compelled by law constitutes a denial of a fair hearing and a

deprivation of fundamental procedural rights, and thus requires reversal." (People v.

Penoli (1996) 46 Cal.App.4th 298, 306.) Accordingly, the order allowing the amendment

                                              17
must be reversed. (See People v. Lara, supra, 86 Cal.App.4th at p. 166.)4 We remand

the matter to permit the trial court to exercise its discretion in considering whether to

allow the People to file the amended information based on a correct view of the facts and

circumstances surrounding the July 7, 2014, change of plea hearing before Judge Lewis.

(See People v. Lettice (2013) 221 Cal.App.4th 139, 153.) Considering our decision that

because of Judge Lasater's lack of correct information it was reversible error to allow the

prosecution to amend the information to allege Sylvester's prior Florida conviction, we

need not address Sylvester's contention that he is entitled to be resentenced because the

trial court did not act with informed discretion regarding its decision to stay or not stay

the sentence enhancement for his prior serious felony conviction allegation.

                                              II

                Consecutive Sentencing on the Criminal Threat Conviction

       Sylvester contends that under section 654, the court should have stayed sentence

on his conviction of making a criminal threat against Adame (count 6). Section 654,

subdivision (a), provides that "[a]n act or omission that is punishable in different ways by



4       The People contend that the standard of reversal under People v. Watson (1956) 46
Cal.2d 818, 836 (Watson) applies, and reversal under that standard is not required
because it is not reasonably probable the trial court (Judge Lasater) would have denied
permission to amend the information had the prosecutor not misinformed the court.
Assuming, without deciding, the Watson standard applies to the court's failure to exercise
informed discretion in permitting the amendment, we conclude reversal is nevertheless
required because there is a reasonable probability the court would have denied leave to
amend the information had it known that when Sylvester decided not to accept the
prosecution's plea offer, he was not on notice that his prior conviction could result in
strike prior and serious felony prior sentencing enhancements.

                                             18
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." Sylvester argues section 654 prohibits his

being punished for both count 3 (inflicting injury to a member of a dating relationship

(Adame)) and count 6 (making a criminal threat against Adame) because his threats to

kill Adame while he was hitting her were incident to the same objective–i.e., to assault

and frighten her.

       " '[S]ection 654 applies not only where there was but one act in the ordinary sense,

but also where there was a course of conduct which violated more than one statute but

nevertheless constituted an indivisible transaction. [Citation.] . . . [Citation.] If all the

offenses were incident to one objective, the defendant may be punished for any one of

such offenses but not for more than one.' [Citation.] 'If [a] defendant harbored "multiple

criminal objectives," which were independent of and not merely incidental to each other,

he may be punished for each statutory violation committed in pursuit of each objective,

"even though the violations shared common acts or were parts of an otherwise indivisible

course of conduct." ' [Citation.] The application of section 654, thus, 'turns on the

defendant's objective in violating' multiple statutory provisions. [Citation.] Where the

commission of one offense is merely ' "a means toward the objective of the commission

of the other," ' section 654 prohibits separate punishments for the two offenses." (People

v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1288.)

       The trial court must stay execution of sentence on any conviction for which

section 654 prohibits multiple punishment. (People v. Kurtenbach, supra, 204

                                               19
Cal.App.4th at p. 1289.) "A trial court's implied finding that a defendant harbored a

separate intent and objective for each offense will be upheld on appeal if it is supported

by substantial evidence." (People v. Blake (1998) 68 Cal.App.4th 509, 512; People v.

Osband (1996) 13 Cal.4th 622, 730-731.)

       Sylvester argues that section 654 prohibits his being punished for both count 3

(inflicting injury to a member of a dating relationship (Adame)) and count 6 (making a

criminal threat against Adame) because his threats to kill Adame while hitting her were

incident to the same objective–i.e., to assault and frighten her. We conclude substantial

evidence supports the court's implied finding that Sylvester harbored two independent

criminal objectives–namely, as Sylvester's own argument suggests, the objective of

physically harming her and the separate objective of frightening her by threatening to kill

her, her unborn baby, and her brother. The court could reasonably find that Sylvester's

hitting Adame was not simply a means of bolstering his threats to kill her and her baby,

which were intended to frighten and intimidate her, but rather reflected the separate intent

of physically injuring her. Because section 654 prohibits multiple punishment for

offenses only when the defendant had the same intent and objective for each offense, the

court did not err in sentencing Sylvester on both count 3 and count 6.

                                             III

            Order Prohibiting Sylvester from Having Contact with His Child

       At the sentencing hearing over Sylvester's objection, the court issued a criminal

protective order under section 273.5, subdivision (j), prohibiting Sylvester from having

contact with Adame, Johnson, and his and Adame's daughter Alina, born in January

                                             20
2014. Sylvester contends the order barring him from contacting Alina must be stricken

because there is no statutory authority for that order and it violates his federal

constitutional right to due process.

          Section 273.5, subdivision (j), provides, in relevant part: "Upon conviction under

subdivision (a), the sentencing court shall also consider issuing an order restraining the

defendant from any contact with the victim, which may be valid for up to 10 years, as

determined by the court. It is the intent of the Legislature that the length of any

restraining order be based upon the seriousness of the facts before the court, the

probability of future violations, and the safety of the victim and his or her immediate

family."

          Section 273.5, subdivision (b), provides that section 273.5, subdivision (a), applies

"if the victim is or was one or more of the following: [¶] (1) The offender's spouse or

former spouse. [¶] (2) The offender's cohabitant or former cohabitant. [¶] (3) The

offender's fiancé or fiancée, or someone with whom the offender has, or previously had,

an engagement or dating relationship . . . . [¶] (4) The mother or father of the offender's

child."

          Sylvester argues that under the plain language of section 273.5, the court did not

have authority to issue a protective order as to Alina because she was not a victim under

subdivision (j) of Sylvester's violation of subdivision (a)–i.e., she was not the victim of

his willful infliction of corporal injury. Further, Sylvester argues, children do not fall

within one of the categories of victims listed in subdivision (b), which limits victims of

violations of subdivision (a) to spouses, cohabitants or former cohabitants, present or

                                               21
former fiancés and fiancées, and persons with whom the defendant has or had a dating

relationship.

       The People urge us to construe section 273.5, subdivision (j), in accordance with

the appellate court's construction of substantially similar statutory language in People v.

Clayburg (2012) 211 Cal.App.4th 86 (Clayburg). The defendant in Clayburg was

convicted of stalking her former husband in violation of section 646.9, subdivision (a).

(Clayburg, supra, 211 Cal.App.4th at p. 88.) The defendant's stalking behavior caused

her minor daughter to suffer emotional distress, and both the victim father and daughter

had obtained restraining orders against the defendant. (Id. at pp. 90, 91.) Like

subdivision (j) of section 273.5, subdivision (k)(1) of section 646.9 provides that "[t]he

sentencing court also shall consider issuing an order restraining the defendant from any

contact with the victim, that may be valid for up to 10 years, as determined by the court.

It is the intent of the Legislature that the length of any restraining order be based upon the

seriousness of the facts before the court, the probability of future violations, and the

safety of the victim and his or her immediate family."

       The majority in Clayburg concluded the reference in the second sentence of

section 646.9, subdivision (k), to "the safety of the victim and his or her immediate

family" as a factor to be considered in determining the length of a restraining order

broadens the definition of the word "victim" in preceding sentence to include members of

the stalking victim's immediate family. (Clayburg, supra, 211 Cal.App.4th at pp. 88-89,

90-92.) Accordingly, the Clayburg majority held "that a member of the immediate



                                             22
family of a stalking victim [citation] who suffers emotional harm, here a child, is a

'victim' for purposes of a postconviction restraining order." (Id. at p. 88.)

       In a dissenting opinion in Clayburg, Justice Perren interpreted section 646.9,

subdivision (k)(1), as authorizing a protective order only for the named victim of the

stalking offense. Justice Perren reasoned: "The first sentence of subdivision (k) instructs

that the court may issue an order 'restraining the defendant from any contact with the

victim.' (Italics added.) The second sentence, however, tells us that in determining the

length of the restraining order, the court may consider 'the safety of the victim and his or

her immediate family.' If 'victim' was meant to include a child of the family, this

qualification would be unnecessary. Moreover the distinction is underscored by section

646.9, subdivision (l) where 'immediate family'[5] is defined. Had the Legislature

intended to include members of the immediate family amongst those entitled to the

benefit of a restraining order, it would have said so. It did not." (Clayburg, supra, 211

Cal.App.4th at p. 94 (dis. opn. of Perren, J.).)

       In People v. Delarosarauda (2014) 227 Cal.App.4th 205 (Delarosarauda), a

defendant was convicted of corporal injury to a spouse in violation of section 273.5,

subdivision (a), and other offenses, and the trial court issued a criminal protective order

as to the victim and her two children, the defendant's son and stepdaughter.



5      "For purposes of this section, 'immediate family' means any spouse, parent, child,
any person related by consanguinity or affinity within the second degree, or any other
person who regularly resides in the household, or who, within the prior six months,
regularly resided in the household." (§ 646.9, subd. (l).)

                                              23
(Delarosarauda , at pp. 208-209.) On appeal, the defendant argued the court did not

have authority to issue a protective order as to the children because they were not victims

of the charged offenses. (Id. at p. 210.) Relying on Clayburg, the People contended the

children were victims for purposes of the protective order because they were immediate

family members of the victim of the charged offenses.

       The Delarosarauda court disagreed with the Clayburg majority's interpretation of

section 646.9, subdivision (k), stating, "We read the second sentence to mean what it

says: the court should consider, among other factors, the 'safety of the victim and his or

her immediate family' in determining the length of the restraining order authorized in the

first sentence. Nothing suggests the second sentence also modifies the scope of the

restraining order. As noted by Justice Perren in the Clayburg dissent, if the term 'victim'

in the first sentence included a child of the family, the second sentence would have no

need to refer to ' "the victim and his or her immediate family." ' " (Delarosarauda, supra,

227 Cal.App.4th at p. 212.)

       Turning to section 273.5, subdivision (j), the Delarosarauda court concluded:

"Under the plain language of section 273.5, the court lacked authority to issue a

protective order as to [the children]. First, [the children] are not victims under section

273.5, subdivision (j). [The mother] confirmed that appellant never used physical force

against them [citation]." Second, for the reasons stated above, the second sentence of

section 273.5, subdivision (j)–addressing the length of the restraining order–does not

modify the term 'victim' in the first sentence or expand it to include the children. Our

interpretation is bolstered by the fact that the children do not fall within one or more of

                                             24
the categories of victims listed in section 273.5, subdivision (b). That statutory section

limits the applicability of section 273.5, subdivision (a) to certain victims (spouses,

cohabitants, fiancées, and parents of the offender's child), and correspondingly limits the

scope of the restraining order authorized by section 273.5, subdivision (j). Thus, section

273.5, subdivision (j) does not authorize the court to issue a protective order as to [the

children]." (People v. Delarosarauda (2014) 227 Cal.App.4th at p. 213.)

       We agree with the reasoning of Delarosarauda and the Clayburg dissent, and

conclude that the second sentence of section 273.5, subdivision (j), does not modify the

term "victim" in the first sentence or broaden its meaning to include Alina, who was not

harmed physically or emotionally by Sylvester's infliction of corporal injury on Adame.6

       The People argue that even if we determine section 273.5, subdivision (j), did not

authorize the protective order as to Alina, we should conclude the court had authority to

issue it under section 136.2, subdivision (i)(1).7 The People rely on this court's opinion



6      The Clayburg majority's conclusion that the stalking victim's daughter was also a
victim of the stalking for purposes of the postconviction protective order largely rested on
the fact that the defendant's stalking caused the daughter to suffer emotional harm. As
noted, the Clayburg majority held that "a member of the immediate family of a stalking
victim [citation] who suffers emotional harm . . . is a 'victim' for purposes of a
postconviction restraining order." (Clayburg, supra, 211 Cal.App.4th at p. 88, italics
added.) Thus, Clayburg is factually distinguishable from the present case in that Adame's
unborn child Alina did not suffer any emotional or physical harm from Sylvester's
violation of section 273.5, subdivision (a)–i.e., infliction of corporal injury on Adame.

7      Section 136.2, subdivision (i)(1) provides, in relevant part: "In all cases in which
a criminal defendant has been convicted of a crime involving domestic violence as
defined in Section 13700 . . . , the court, at the time of sentencing, shall consider issuing
an order restraining the defendant from any contact with the victim. The order may be
valid for up to 10 years, as determined by the court. This protective order may be issued
                                             25
in People v. Beckemeyer (2015) 238 Cal.App.4th 461 (Beckemeyer), in which the trial

court issued a postconviction protective order under section 136.2, subdivision (i)(1), that

restrained the defendant convicted of attempted murder and assault with a deadly weapon

from contact with a woman he had been dating and her adult son. The defendant hit his

female victim "in the head with his fist, knocked her down, sat on top of her, pulled hair

out of her head, repeatedly banged her head on the floor, and tried to choke her."

(Beckemeyer, at pp. 463-464.) When the woman's son appeared and told the defendant

he had called 911, the defendant hit the son and knocked him down, punched him, beat

him with a cane, and repeatedly hit him with a rock. (Id. at p. 464.) When the mother

intervened, the defendant knocked her down, banged her head on a drill press and tried to

snap her neck by jerking it from side to side. (Ibid.) The defendant pleaded guilty to

attempted murder of the mother and assault with a deadly weapon of the son. (Ibid.) On

appeal the defendant argued that the postconviction protective order must be stricken as

to the son because he did not qualify as a domestic violence victim.

       In rejecting the defendant's argument, the Beckemeyer court noted that "[s]ection

136 defines 'victim' for purposes of a section 136.2 protective order, stating: 'As used in

this chapter: [¶] . . . [¶] (3) "Victim " means any natural person with respect to whom

there is reason to believe that any crime as defined under the laws of this state . . . is

by the court regardless of whether the defendant is sentenced to the state prison or a
county jail or subject to mandatory supervision, or whether imposition of sentence is
suspended and the defendant is placed on probation. It is the intent of the Legislature in
enacting this subdivision that the duration of any restraining order issued by the court be
based upon the seriousness of the facts before the court, the probability of future
violations, and the safety of the victim and his or her immediate family."

                                              26
being or has been perpetrated or attempted to be perpetrated.' " (Beckemeyer, supra, 238

Cal.App.4th at p. 465, italics omitted.) Accordingly, the Beckemeyer court held section

136, subdivision (i)(1), "encompasses a person, like [the son], who was actually

assaulted during the domestic violence incident, and who accordingly meets the broad

definition of 'victim' set forth in the statutory scheme." (Id. at p. 463.)

       Beckemeyer is distinguishable from the present case because Sylvester did not

assault or harm Alina during the domestic violence incident. Although he uttered a threat

to kill Alina to Adame, he did not perpetrate or attempt to perpetrate any crime against

Alina. Unlike the son in Beckemeyer, Alina does not meet the broad definition of

"victim" set forth in the statutory scheme. Accordingly, the court did not have authority

to issue the protective order as to Alina under section 136.2, subdivision (i)(1).

       The People contend that if the trial court lacked statutory authority to issue the

protective order as to Alina, we should uphold the order as a legitimate exercise of the

court's inherent authority to issue no-contact orders when necessary to ensure the safety

and privacy of those involved in judicial proceedings. The People rely on Townsel v.

Superior Court (1999) 20 Cal.4th 1084, 1094, in which the Supreme Court held the trial

court has inherent authority to protect the safety and privacy of jurors following their

discharge from a trial. Relying on People v. Ponce (2009) 173 Cal.App.4th 378, 383-385

(Ponce), Sylvester argues the protective order as to Alina was not a proper exercise of the

court's inherent authority because the order was not justified.

       The People in Ponce cited Townsel as support for the argument that a protective

order improperly issued under section 136.2 was nevertheless valid because trial courts

                                              27
have inherent authority to issue protective orders to protect trial participants. The Ponce

court rejected that argument, stating: "An existing body of statutory law regulates

restraining orders. ' "[I]nherent powers should never be exercised in such a manner as to

nullify existing legislation . . . ." ' [Citation.] Where the Legislature authorizes a specific

variety of available procedures, the courts should use them and should normally refrain

from exercising their inherent powers to invent alternatives. [Citation.] [¶] Moreover,

even where a court has inherent authority over an area where the Legislature has not

acted, this does not authorize its issuing orders against defendants by fiat or without any

valid showing to justify the need for the order." (Ponce, supra, 173 Cal.App.4th at

p. 384.)

       The Ponce court noted that in Townsel, an order protecting jurors by prohibiting

the defendant's appellate counsel from contacting them without first obtaining the trial

court's approval "was justified because of the defendant's history of interfering with the

judicial process by killing or threatening witnesses." (Ponce, supra, 173 Cal.App.4th at

p. 384.) The Ponce court further noted that in People v. Stone (2004) 123 Cal.App.4th

153, the Court of Appeal "held that a protective order could not be sustained without a

showing of 'a threat, or likely threat to criminal proceedings or participation in them.' "

(Ponce, supra, 173 Cal.App.4th at p. 384, quoting Stone, at p. 160.) The Ponce court

observed there was no evidence the defendant "had threatened, or had tried to dissuade,

any witness, or had tried to unlawfully interfere with the criminal proceedings. The

prosecutor did not make an offer of proof or any argument to justify the need for a

protective order. He simply said, '[W]e'd also like to have a stay-away order in this case

                                              28
. . . .' But a prosecutor's wish to have such an order, without more, is not an adequate

showing sufficient to justify the trial court's action." (Ponce, supra, 173 Cal.App.4th at

pp. 384-385.)

       Similarly, there is no evidence or argument in the present case that Sylvester posed

any threat to criminal proceedings or participation in criminal proceedings that would

justify a statutorily unauthorized protective order prohibiting him from contacting Alina.

The trial court did not have statutory or inherent authority to issue the protective order as

to Alina. In the event future circumstances justify an order protecting Alina from contact

with Sylvester, there are statutes that authorize the family and juvenile courts to provide

such protection. (See, e.g., Fam. Code, §§ 6320 et seq. & 6340 et seq.; Welf. & Inst.

Code, § 213.5.)

                                       DISPOSITION

       The order allowing the prosecution to file the third amended information alleging

a prior conviction is reversed and the matter is remanded to the trial court to reconsider

whether to allow the prosecution to file the third amended information based on the facts

and circumstances regarding the July 7, 2014, hearing before Judge Lewis and, if

necessary, to resentence Sylvester. If after reconsideration of the matter the court allows

the third amended information, Sylvester's sentence will remain unchanged. If the court

resentences Sylvester without the prior strike conviction and prior serious felony

conviction enhancements, the court is directed to prepare an amended abstract of the

judgment reflecting the resentencing and forward the amended abstract to the Department

of Corrections. The court is further directed to modify the criminal protective order

                                             29
issued under section 273.5, subdivision (j), by removing Alina S.'s name from the list of

protected persons. In all other respects, the judgment is affirmed.




                                                                          McDONALD, J.

WE CONCUR:


McCONNELL, P. J.


HUFFMAN, J.




                                            30
