Filed 6/6/16 P. v. Hawkins CA3
                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




THE PEOPLE,                                                                                  C078160

                   Plaintiff and Respondent,                                      (Super. Ct. No. 14F2844)

         v.

ANTHONY JAWON HAWKINS,

                   Defendant and Appellant.




         A jury convicted defendant Anthony Jawon Hawkins of corporal injury on a
cohabitant (Pen. Code, § 273.5, subd. (a)--count 1),1 false imprisonment by violence
(§ 236--count 2), assault with force likely to cause great bodily injury (§ 245, subd.
(a)(4)--count 3), and two counts of misdemeanor resisting, obstructing, or delaying a
peace officer (§ 148, subd. (a)(1)--counts 4 & 5). In a bifurcated proceeding, the trial




1   Undesignated statutory references are to the Penal Code.

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court found true the special allegations that defendant suffered a prior serious and violent
felony conviction (§ 1170.12) and served a prior prison term (§ 667.5, subd. (b)). The
court sentenced him to nine years in state prison.
       On appeal, defendant contends (1) the trial court erred in denying his section 995
motion to set aside count 2 (false imprisonment by violence), (2) the sentence on his false
imprisonment conviction should have been stayed pursuant to section 654, and (3) the
trial court erred in imposing a consecutive sentence on the aggravated assault conviction
(count 3) based on a dual use of facts. With regard to the latter claim, defendant
concedes his failure to object on the specific grounds asserted here forfeited the claim,
but asserts the failure to object was the result of the ineffective assistance of his trial
counsel and urges us to remand for resentencing on count 3.
       The People concede the section 654 claim, but argue the court’s denial of
defendant’s section 995 motion was proper and defendant has shown no prejudice as a
result thereof. They further argue defendant forfeited his claim regarding the court’s
imposition of a consecutive sentence as to count 3. The People also assert a claim that
the judgment must be modified to include additional mandatory fees and assessments.
       We will affirm defendant’s convictions and remand the matter to the trial court for
further proceedings.
                                FACTUAL BACKGROUND
       The facts are briefly summarized as follows, and will be set forth in more detail
where relevant to defendant’s claims.
       On May 14, 2014, defendant returned to the home he shared with his girlfriend,
Leslie “Colleen” Bennett, and Bennett’s mother, Leslie Jones. Seeing that defendant was
drunk and agitated, Bennett asked him to leave. Defendant refused and began arguing
with Bennett. He pushed her onto the bed and began choking her. When defendant
loosened his grip, Bennett wiggled free and escaped to the living room where she called
Jones and summoned her to the house.

                                               2
       For the next several hours, defendant argued with Bennett, grabbed her, pushed
and shoved her, slammed her to the ground, and choked her several times with his hands
making it difficult for her to breathe and causing her to become light-headed. During that
time, Jones returned home with a friend, Russell Michaels. Both Jones and Michaels
witnessed defendant choking Bennett and tried to intervene.
       Eventually, Michaels left. However, defendant’s assault on Bennett continued,
prompting Jones to call 911. She stepped outside onto the porch, as did Bennett.
Defendant followed, yelling at Jones to hang up the phone. When Bennett tried to go
back inside, defendant shoved her, causing her to trip and land flat on her back. Bennett
tried to make her way to the bathroom but defendant followed her and slammed her up
against the wall. As Bennett made her way back outside, she heard her mother begging
the 911 dispatcher to send someone to help. Defendant followed Bennett, grabbed her,
and continued to choke her in the driveway. When he finally let go, she ran back inside
and locked the door. Defendant pounded on the door for approximately 15 minutes until
Deputies Tim Estes and Gary Nunnelley arrived.
                                PROCEDURAL HISTORY
       Defendant was initially charged by criminal complaint with false imprisonment
(§ 236--count 1), three counts of corporal injury to a cohabitant (§ 273.5, subd. (a)--
counts 2, 3, & 4), and two counts of misdemeanor resisting, obstructing, or delaying a
peace officer (§ 148, subd. (a)(1)--counts 5 & 6). The complaint alleged defendant
suffered a prior serious and violent felony conviction (§ 1170.12) and served a prior
prison term (§ 667.5, subd. (b)).
       At the preliminary hearing, the sole witness, Deputy Estes, testified that he first
spoke with Jones on the telephone prior to arriving at the apartment. Jones informed him
that defendant was being combative and was choking Bennett. Once at the apartment,
Deputy Estes made contact with Bennett, who “was crying . . . hysterical . . . [h]er voice
was hoarse, and she had visible injuries.” Bennett told him she “was terrorized over a

                                              3
period of several hours by the defendant,” with whom she had been dating and
cohabitating. Bennett described three different incidents in which defendant placed his
hands around her throat and strangled her.
       The first incident occurred in her bedroom while she and defendant were seated on
the bed. Defendant “placed his left hand around [Bennett’s] throat and began to
squeeze,” causing her to become light-headed and making it difficult for her to breathe.
He “held her against her will, pushed her over backwards on the bed and held her . . .
[¶] . . . [¶] . . . [b]y her neck, forcing her back against the bed.” Bennett told Deputy
Estes that defendant held her down for approximately one minute.
       The second incident also occurred in the bedroom. When Bennett entered the
bedroom and asked defendant to leave, defendant “sandwiched her against the wall,
grabbed her throat with both hands, pushed her on to the bed and then began to squeeze,”
again making her light-headed and unable to breathe.
       The third incident occurred when Bennett left the apartment. Defendant caught up
with her, “grabbed her around the throat with his hands, and again began to squeeze,”
making her light-headed and unable to breathe.
       Following the preliminary hearing, the court indicated its tentative ruling as
follows: “Well, what I am looking at is, before you argue, one count of [section] 273.5,
given the evidence here.”
       The prosecution argued the evidence of three separate incidents supported the
three counts as alleged. The prosecution also argued the evidence of defendant “holding
[Bennett] down and not letting her up for a minute” was sufficient to support the false
imprisonment count.




                                              4
        Defense counsel argued the entire incident was an “on-going argument,” which
could not be separated into three separate counts, and the evidence that defendant held
Bennett down for one minute did not support a separate charge of false imprisonment.2
        Agreeing with defendant that the evidence demonstrated a “continual string of
violence” with “no separation,” the court concluded “there is a single [section] 273.5.”
The court also noted that “considering being held down during the course of the [section]
273.5 for approximately a minute, as a fully separate crime, is not something that I can
concur with,” and held defendant to answer as follows: “So I would find a single felony
for holding. That could be [c]ount 2, if you like, three or four. One of the [section]
273.5’s. That obviously, given the agreement by defense, hold the defendant on
[c]ount[s] 5 and 6.”
        The prosecution filed a new information charging defendant with corporal injury
on a cohabitant (§ 273.5, subd. (a)--count 1), false imprisonment by violence (§ 236--
count 2), assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)--
count 3), and two counts of misdemeanor resisting, obstructing, or delaying a peace
officer (§ 148, subd. (a)(1)--counts 4 & 5), and alleging he suffered a prior serious and
violent felony conviction (§ 1170.12) and served a prior prison term (§ 667.5, subd. (b)).
        Defendant filed a motion to set aside count 2 of the new information pursuant to
section 995. The trial court denied the motion.3
        The trial court sentenced defendant to an aggregate term of nine years in state
prison. In that regard, the court imposed the middle term of three years for the corporal
injury conviction (count 1), doubled pursuant to the prior strike, plus a concurrent two-
year term for the false imprisonment conviction (count 2), a consecutive two-year term


2Defense counsel conceded the evidence was sufficient to hold defendant on the two
misdemeanor counts for resisting, obstructing, or delaying a peace officer (counts 5 & 6).
3   The record does not contain a transcript of the proceedings.

                                              5
(one-third the middle term) doubled for the assault conviction (count 3), a consecutive
one-year term for the prior prison term enhancement, and two concurrent one-year terms
for the two misdemeanor convictions for resisting a peace officer (counts 4 & 5).4
Defense counsel objected to the sentence on count 3, arguing it should either have been
stayed pursuant to section 654 or run concurrent.
       The court imposed a $10,000 restitution fine (§ 1202.4), a $10,000 parole
revocation restitution fine (§ 1202.45) stayed pending successful completion of parole, a
$120 court operations assessment (§ 1465.8, subd. (a)(1)), and a $60 criminal conviction
assessment (Gov. Code, § 70373), and ordered defendant to pay victim restitution as
directed by the Department of Corrections and Rehabilitation.5
       Defendant filed a timely notice of appeal.
                                      DISCUSSION
                                             I
                              Denial of Section 995 Motion
       Defendant contends the trial court’s denial of his motion to set aside count 2
alleging false imprisonment with violence (§ 236) was error because the evidence
presented at the preliminary hearing was insufficient to support the charge.
       The People argue there was adequate evidence at the preliminary hearing to hold
defendant over on the charge of false imprisonment and, in any event, defendant has not
shown resulting prejudice. We agree with the People.




4  In imposing sentence, the trial court misspoke, referring to the violation of section
273.5 as count 2 and the violation of section 236 as count 1, rather than vice versa as
alleged in the information and reflected in the sentencing minute order and abstract of
judgment.
5 The court’s minute order and the abstract of judgment both reflect a $90 criminal
conviction assessment pursuant to Government Code section 70373.

                                             6
       Section 995, subdivision (a)(2) states that an information shall be set aside upon a
defense motion if “the defendant had not been legally committed by a magistrate” before
the filing of the information, or “the defendant had been committed without reasonable or
probable cause.”
       “An information will not be set aside or a prosecution thereon prohibited if there is
some rational ground for assuming the possibility that an offense has been committed and
the accused is guilty of it.” (Frazzini v. Superior Court (1970) 7 Cal.App.3d 1005, 1015-
1016.) “Evidence that will justify a prosecution need not be sufficient to support a
conviction. [Citations.] Every legitimate inference that may be drawn from the evidence
must be drawn in favor of the determination of probable cause.” (Id. at p. 1015; see also
People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690, 699.) “And, while there
must be some showing as to the existence of each element of the crime, such a showing
may be made by means of circumstantial evidence supportive of reasonable inferences.”
(People v. Superior Court (Costa), at p. 699.)
       We review section 995 rulings to determine whether substantial evidence supports
the decision of the magistrate holding the defendant to answer the charges. (People v.
Davis (2010) 184 Cal.App.4th 305, 310-311; People v. Lopez (1975) 52 Cal.App.3d 263,
265-266.)
       Here, the challenged charge is false imprisonment with violence. “ ‘False
imprisonment is the unlawful violation of the personal liberty of another.’ (Pen. Code,
§ 236.) [¶] ‘ “ ‘ “In order to constitute a case of false imprisonment, it is essential that
there be some restraint of the person; but it is not necessary that there be confinement in a
jail or prison. Any exercise of force, or express or implied threat of force, by which in
fact the other person is deprived of his liberty or is compelled to remain where [s]he does
not wish to remain, or to go where [s]he does not wish to go, is false imprisonment. The
wrong may be committed by acts or by words, or both, and by merely operating upon the
will of the individual or by personal violence, or both. . . .” ’ [Citations.]” ’ [Citation.]

                                               7
[¶] People v. Haney (1977) 75 Cal.App.3d 308, 313, involved false imprisonment and
sets forth ‘unlawful restraint’ in its simplest form: [¶] ‘The primary element of the
offense, the unlawful restraint of another’s liberty, does not require one or more of those
elements necessary to raise the crime to felony status. All that is necessary to make out a
charge of false imprisonment, a misdemeanor, is that “the individual be restrained of
[her] liberty without any sufficient complaint or authority therefor, and it may be
accomplished by words or acts [together with the requisite intent to confine] which such
individual fears to disregard.” ’ ” (People v. Grant (1992) 8 Cal.App.4th 1105, 1112,
italics omitted.)
       For purposes of establishing felony false imprisonment by violence or menace
(§ 237), “ ‘violence’ means ‘ “the exercise of physical force used to restrain over and
above the force reasonably necessary to effect such restraint.” ’ [Citation.] In this
context, ‘menace’ means ‘ “a threat of harm express or implied by word or by act.” ’
[Citation.]” (People v. Bamba (1997) 58 Cal.App.4th 1113, 1123.)
       Defendant contends that while the evidence presented at the preliminary hearing
did show he used force, it did not show “anything above or beyond the force it would
have taken to restrain [Bennett],” as is required in order to establish felony false
imprisonment by violence or menace. (People v. Hendrix (1992) 8 Cal.App.4th 1458,
1462; People v. Castro (2006) 138 Cal.App.4th 137, 140.) The claim is meritless.
       Deputy Estes testified at the preliminary hearing that Bennett recounted three
incidents in which defendant strangled her. During one of those incidents, defendant held
Bennett against her will, pushed her back against the bed, placed his hands around her
throat, and squeezed for approximately one minute. In other words, defendant did not
simply push Bennett against the bed and hold her there, he used his hands to choke her
and put enough pressure on her throat to restrict her breathing and cause her to become
light-headed. He strangled Bennett for one minute, leaving visible red marks on her
throat and causing her to speak in a hoarse voice by the time deputies arrived.

                                              8
Defendant’s conduct was violent and indeed above and beyond the force required to
simply restrain Bennett on the bed.
       In any event, even if we were to assume the section 995 motion was denied in
error, defendant must show not only that denial of the motion was erroneous, but also
prejudicial. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 140; People v. Pompa-
Ortiz (1980) 27 Cal.3d 519, 529-530.) He has failed to do so.
       At trial, Bennett testified defendant pushed her onto the bed and choked her for
“[p]robably a minute,” making it difficult for her to breathe. When he loosened his grip,
she wriggled free and fled to the living room to call her mother. She testified that, during
the next several hours before law enforcement arrived, defendant choked Bennett several
more times, making it difficult for her to breathe and causing her to feel light-headed. At
one point, she “turned around to try to walk away” and defendant grabbed her arm and
pulled her towards him. She was able to twist away but defendant held her by her arms
and tried to pull her into the bedroom and close the door. When she yelled to her mother
for help, defendant threw her on the bed, got “kind of on top of [her] with one knee,” and
choked her, causing her to black out. Defendant stopped when Michaels intervened, but
Bennett remained on the bed for approximately five minutes because she was afraid to
move. At another point, she lay down on the bed and started to drift off but awoke to
find defendant’s hands around her throat choking her. At yet another point, Jones was on
the telephone calling 911 and Bennett “tried to follow her outside because [Bennett] was
scared.” Defendant was right behind her and, when she turned back around towards the
house, defendant shoved her, causing her to hit her head on the table and land on her back
on the hardwood floor. When Bennett got back on her feet and went back outside
towards her mom who was in the driveway on the phone, defendant grabbed her by the
neck with one hand and squeezed hard enough to restrict her breathing, and with his other
hand squeezed her face, telling her she “better not call the cops.” Bennett pushed on him
and tried to back away while Jones tried unsuccessfully to pull defendant’s hand from

                                             9
Bennett’s throat. When Jones said something to the effect of “the cops [are] on their
way,” defendant let go and Bennett was able to run back to the house for safety.
Defendant chased after her and pounded on the locked door but was unable to enter the
home.
         Bennett also testified that, following one of the choking incidents, she walked into
the living room. Defendant followed her, shouting at her. He began pushing and pulling
her and, as she “continued to try to just get away from him,” he slammed her onto Jones’s
futon. Bennett kicked at defendant to fend him off while Jones called 911. Defendant
grabbed Bennett by the crotch of her pants, pulled her up, and slammed her onto the
floor.
         Jones testified at trial, corroborating Bennett’s testimony to the extent she was
present. Deputy Estes also testified at trial, corroborating Bennett’s claims of being
choked by defendant. He described the injuries she suffered as a result of the violence,
including bruises on her arms, chest, and back, and redness on her throat, and that she
was speaking with a hoarse voice and had urinated on herself.
         The evidence presented at trial demonstrated defendant’s conduct was violent and
above and beyond the force required to simply restrain Bennett. Therefore, defendant
suffered no prejudice because the evidence at trial was sufficient to support the
conviction for felony false imprisonment with violence or menace.
                                               II
                                 Section 654 Stay of Count 2
         Next, defendant contends section 654 bars the concurrent term imposed by the
trial court for the false imprisonment conviction (count 2). The People concede the issue.
We accept the People’s concession.
         Section 654 provides in pertinent part: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or

                                               10
omission be punished under more than one provision.” (§ 654, subd. (a).) “The purpose
of section 654 is to prevent multiple punishment for a single act or omission, even though
that act or omission violates more than one statute and thus constitutes more than one
crime. Although the distinct crimes may be charged in separate counts and may result in
multiple verdicts of guilt, the trial court may impose sentence for only one offense--the
one carrying the highest punishment. [Citation.]” (People v. Liu (1996) 46 Cal.App.4th
1119, 1135, fn. omitted.)
       The record reveals that, in falsely imprisoning Bennett by holding her down by the
throat and choking her, defendant’s only objective was to continue his assault on her.
That is to say, the false imprisonment was part and parcel of the assaultive conduct.
Because the assault and the false imprisonment constituted a single course of conduct,
section 654 prohibits punishment for more than one offense related thereto. Thus, we
conclude the trial court should have stayed the sentence for the false imprisonment
conviction (count 2). We will modify the judgment to reflect that the sentence imposed
for defendant’s conviction for false imprisonment (count 2) is stayed pursuant to section
654.
                                            III
                            Imposition of Consecutive Sentences
       Finally, defendant contends the trial court erred in imposing a consecutive
sentence on count 3. He challenges the court’s reasons for selecting a consecutive
sentence. In that regard, the court reasoned as follows:
       “The [section] 245 [subdivision] (a)(1) was designated by [the prosecution] as a
separate and distinct count, and that was the kicking to the face as [Bennett] was being
pulled off the bed. That was a significant event, so I am going to determine that that
should be a consecutive count. One-third the mid, 245 is two years times two, would be
two years.”



                                            11
       Defense counsel responded as follows: “My only disagreement with the Court is
on the [c]ount 3, [section] 245 [subdivision] (a)(1). I think the [section] 273.5, the
[section] 236, and the [section] 245 [subdivision] (a)(4) are all . . . [s]ection 654 crimes in
that they are -- although, as explained to the jury, the district attorney was proceeding on
the [section] 245 on one part of this incident, it is still a continuous course of conduct and
they could very well -- the corporal injury to a spouse and the assault with force likely,
they’re hard to parse out and say, the corporal injury to a spouse is not based on the same
incident. Even if, technically, they’re not [section] 654, I would ask that they run
concurrent much like the false imprisonment runs concurrent because in looking at two
[con]current versus consecutive sentences, this is all one incident over a period of hours,
but neither one of them leave. The victim does -- this isn’t just a constant beating. The
victim goes to the front door, comes back, [defendant] walks around. There’s sporadic
violence through a couple of hours, but it’s clear, I think, to everyone that’s all one
incident. When the Court’s talking about consecutive versus concurrent, this all was
basically part of the same incident. It occurred on the same date. That’s why I’m saying,
even if it’s not technically [section] 654, I think each of the crimes should be run
concurrent. So, I would be asking for a midterm on the [section] 273.5, understanding
there’s a prison prior for a total of seven years.”
       Defendant contends the court’s characterization of the assault as “significant”
constituted an improper dual use of facts. He further claims the purported fact of
defendant “kicking [Bennett] in the face” was not part of the evidence. Finally, he claims
that, because there was only one victim and the crimes (i.e., corporal injury, assault, &
false imprisonment) were all “committed so closely in time and place as to indicate a
single period of aberrant behavior” (Cal. Rules of Court, rule 4.425(a)(3)), the evidence
did not indicate an independent purpose or objective (Cal. Rules of Court, rule
4.425(a)(1)). Thus, he claims, the sentence imposed for count 3 must be reversed.



                                              12
       The People argue defendant forfeited his claim for failure to object to the court’s
statement of reasons despite being “well aware of the court’s sentencing choices and
[having] a meaningful opportunity to object.” (People v. Scott (1994) 9 Cal.4th 331, 354,
356; People v. Velasquez (2007) 152 Cal.App.4th 1503, 1511.)
       In response to the People’s argument, defendant concedes his failure to object, but
contends the failure was the result of the ineffective assistance of his trial counsel, which
resulted in a sentence based on inappropriate sentencing factors.
       To succeed on his claim of ineffective assistance of counsel, defendant has the
burden of showing both that his counsel’s performance was deficient and that the
deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S.
668, 687 [80 L.Ed.2d 674, 693].) To show prejudice, defendant must show there is a
reasonable probability that but for counsel’s performance, the result of the proceeding
would have been different. (Id. at p. 694.) If defendant fails to show prejudice, we need
not determine whether counsel’s performance was deficient. (People v. Weaver (2001)
26 Cal.4th 876, 961.)
       Our review of the record reveals there was no evidence presented at trial regarding
defendant kicking Bennett in the face, nor did the prosecution rely on such a theory in
support of the assault charge (count 3). Thus, the record establishes on its face defense
counsel’s error in failing to object. Because the trial court found defendant kicking
Bennett in the face, a fact not found in the record, to be a “significant event,” we must
conclude that had defendant’s counsel objected to the sentence for count 3 on the
challenged grounds, there is a reasonable probability the trial court would not have
imposed a consecutive term and trial counsel’s failure to object fell below an objective
standard of reasonableness. We will therefore remand the matter for resentencing on
count 3.




                                             13
                                              IV
                             Mandatory Fees and Assessments
       The People contend the trial court properly imposed $120 in mandatory court
security fees (§ 1465.8, subd. (a)(1)) and $90 in mandatory court operations assessments
(Gov. Code, § 70373) as to three of defendant’s five convictions, but failed to do so as to
the remaining two convictions, thus resulting in an unauthorized sentence. The People
contend the issue of an unauthorized sentence can be raised for the first time on appeal
(People v. Rodriguez (2000) 80 Cal.App.4th 372, 376) and is therefore not forfeited by
their failure to object below. Defendant’s reply brief does not address the issue.
       Failure to impose mandatory fees, fines, penalties, and assessments constitutes an
unauthorized sentence, which may be corrected by an appellate court even in the absence
of an objection or argument below. (People v. Turner (2002) 96 Cal.App.4th 1409,
1413-1415.) We exercise our inherent authority to modify the judgment to impose an
aggregate court security fee of $200 pursuant to section 1465.8, and an aggregate court
operations assessment of $150 pursuant to Government Code section 70373.
                                       DISPOSITION
       The judgment is modified to reflect that the sentence imposed for defendant’s
conviction for false imprisonment (count 2) is stayed pursuant to section 654. The
judgment is further modified to reflect a $200 court security fee (§ 1465) and a $150
court operations assessment (Gov. Code, § 70373). The matter is remanded to the trial
court for resentencing on count 3. The trial court is directed to amend the abstract of
judgment accordingly and send a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation.
       Pursuant to Business and Professions Code section 6086.7, subdivision
(a)(2), the clerk of this court is ordered to forward a copy of this opinion to the




                                              14
State Bar upon finality of this appeal.6 Further, pursuant to Business and
Professions Code section 6086.7, subdivision (b), the clerk of this court shall
notify defendant’s trial counsel that the matter has been referred to the State Bar.



                                             /s/
                                           Blease, Acting P. J.


We concur:



         /s/
       Hull, J.



         /s/
       Robie, J.




6 Business and Professions Code section 6086.7, subdivision (a)(2) requires the court to
notify the State Bar “[w]henever a modification or reversal of a judgment in a judicial
proceeding is based in whole or in part on the misconduct, incompetent representation, or
willful misrepresentation of an attorney.”

                                             15
