Filed 12/4/15 P. v. Garber 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C078547

                   Plaintiff and Respondent,                                      (Super. Ct. No. 14F2469)

         v.

BART ALLAN GARBER,

                   Defendant and Appellant.




         A jury found defendant Bart Allan Garber guilty of one count of assault with a
deadly weapon. (Pen. Code, § 245, subd. (a)(1).)1 In a bifurcated proceeding, the trial
court found true the special allegations that defendant had suffered two prior strike
convictions (§§ 1170.12, 667, subds. (b)-(i)), a prior serious felony conviction (§ 667,
subd. (a)), and had served a prior prison term (§ 667.5, subd. (b)). Defendant was




1   Undesignated statutory references are to the Penal Code.

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sentenced to an indeterminate term of 25 years to life for assault with a deadly weapon,
plus six years consecutive for the prior serious felony and prior prison term.
       On appeal, defendant contends: (1) the one-year prior prison term enhancement
must be stricken; (2) the trial court erred by failing to conduct an adequate inquiry into
his various allegations made at the hearing and by failing to appoint new counsel to assist
him in bringing a motion for new trial; and (3) the restitution and parole revocation fines
must be reversed and stricken. We will modify the sentence and otherwise affirm.
                                     BACKGROUND
       The Information
       On June 25, 2014, an information was filed in the Shasta County Superior Court,
charging defendant with one count of assault with a deadly weapon. (§ 245, subd.
(a)(1).) The information also alleged that defendant had two prior strike convictions
(§ 1170.12), a serious prior felony conviction (§ 667, subd. (a)), and had served a prior
prison term (§ 667.5, subd. (b)).
       Evidence at Trial
       On April 26, 2014, Roland Loewen, a truck driver, was making a delivery to
Moores’ Flour Mill in Redding when he observed a pickup truck parked within six to
eight feet of him. The victim, referred to in the record as Jane Doe, was inside the truck
while defendant was in the bed of the truck “jerking wildly” on the handle of a piece of
luggage. After the victim got out of the truck and retrieved her luggage, defendant drove
his truck around a building. Finding the situation unusual, Loewen got out of his truck
and walked around the building. When he arrived on the other side, he saw defendant
and the victim arguing. Defendant gave the victim what appeared to be a CD case and
she “flung it out onto the pavement and kind of walked away.” Not wanting anything to
do with the situation, Loewen walked back to his truck.
       While sitting in his truck, Loewen noticed that defendant had moved his truck near
the southwest corner of the lot behind the mill. He then saw defendant reach into his

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truck and pull out a steel crowbar. Shortly thereafter, Loewen saw the victim run away
from defendant and defendant use the crowbar to smash the side of his truck. Loewen
testified that he did not see defendant strike the victim with the crowbar, explaining that
defendant’s truck blocked his view of defendant and the victim.
       Loewen called 911. The victim also called 911. She told the 911 operator that she
needed a police officer because she “just got beat.” When the operator asked her about
what had happened, the victim responded, “Bart Garber.” The victim told the operator
that she had been attempting to catch a bus, but defendant had taken her ticket. She then
described defendant’s truck and told the operator: “He beat on me, really bad.” She
explained that defendant had taken her purse and hit her with a crowbar. While the
victim complained about pain in her wrist, she told the operator that she did not need an
ambulance.
       Redding Police Officer Peggy Porter responded to the mill and made contact with
the victim, who was upset and crying. The victim complained to Porter about pain in her
arm. She explained to Porter that defendant had driven her to the mill to catch a bus, they
had argued, she threw some CDs out of defendant’s truck that defendant believed to be
his, and defendant hit her in the back with a crowbar three times. At her request, Porter
drove the victim to the Shasta Regional Medical Center.
       Later that same day, defendant was arrested by Redding Police Officer Rebecca
Zufall. Zufall searched defendant’s truck and found a crowbar behind the driver’s seat.
She took the crowbar to the hospital, and the victim identified it as the object that
defendant had used to hit her.
       At trial, the victim stated that defendant was her fiancé and that she was pregnant
with his child. She testified that she got into an argument with defendant at the mill but
defendant did not hit her with a crowbar. The victim also testified that she did not
remember telling the 911 operator that defendant hit her with a crowbar. According to
the victim, her injuries were the result of a fall and bumping into a wall the night before

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the incident with defendant. She claimed to be “accident prone,” and stated that she fell
down a lot. The victim also claimed to be bipolar and to suffer from manic depression.
She testified that she was on medication at the time of the incident, which caused her to
hallucinate and believe things happened that did not. The victim described the
hallucinations as “[v]ery schizophrenic,” and noted that schizophrenia runs in her family.
She claimed that she was hallucinating when she told the 911 operator that defendant hit
her with a crowbar.
       The victim’s sister, Wendie Carroll, testified that the victim told her she had been
struck by defendant multiple times with a crowbar, causing her to suffer a broken wrist
and broken ribs. Carroll stated that the victim was in excruciating pain on the night of the
incident; she was holding her ribs and arm and complaining that it was hard for her to
breathe. Carroll also stated that the victim later changed her story, claiming her injuries
were the result of falling off a coffee table.
       Photographs documenting the victim’s injuries were admitted into evidence.
Porter testified that the injuries were fresh and consistent with being hit by a crowbar.
       Defendant did not call any witnesses at trial or present any evidence in his defense
other than through cross-examination of the People’s witnesses.
       Verdict and Sentencing
       On August 21, 2014, the jury found defendant guilty of one count of assault with a
deadly weapon. (§ 245, subd. (a)(1).) In a bifurcated proceeding, the trial court found
true the special allegations that defendant had two prior strike convictions (§ 1170.12), a
prior serious felony conviction (§ 667, subd. (a)(1)), and had served a prior prison term
(§ 667.5, subd. (b)).
       On January 30, 2015, the trial court denied defendant’s motion for new trial and
sentenced him to 25 years to life in prison for assault with a deadly weapon, plus five
years for the prior serious felony conviction and one year for the prior prison term.
Defendant filed a timely notice of appeal.

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                                      DISCUSSION
                                              I
                                Dual Use of Enhancements
       Defendant first contends that the trial court erred by imposing two enhancements
based on the same prior conviction: (1) a prior serious felony enhancement under section
667, subdivision (a)(1); and (2) a prior prison term enhancement under section 667.5,
subdivision (b). According to defendant, the one-year prior prison term enhancement
imposed by the trial court should be stricken because it is contrary to People v. Jones
(1993) 5 Cal.4th 1142 (Jones), as it constitutes a prohibited “dual use” of a single prior
conviction. We disagree.
       In Jones, the defendant had served three prior prison terms for felony convictions,
one of which was for a serious felony conviction. (Jones, supra, 5 Cal.4th at p. 1145.)
He received both a five-year serious felony enhancement under section 667 and a one-
year prior prison term enhancement under section 667.5 based on the same prior serious
felony conviction. (Jones, at p. 1145.) He challenged the imposition of two
enhancements based on the same prior conviction. Our Supreme Court concluded that
when multiple statutory enhancement provisions are available for the same prior offense,
one of which is a section 667, subdivision (a) enhancement, only the greatest
enhancement will apply. (Jones, at p. 1150.) Accordingly, the court held that the trial
court improperly imposed a cumulative enhancement under both sections 667 and 667.5
based on a single prior felony offense and directed the trial court to strike the one-year
prior prison term enhancement. (Jones, at pp. 1150-1153.)
       Defendant’s reliance on Jones is misplaced. In Jones, a single prior conviction
underlay both enhancements. Here, both the prior prison term enhancement and the prior
serious felony enhancement are founded on a single case that resulted in two convictions
for lewd and lascivious acts upon a child under 14. (§ 288, subd. (a).) Because either
conviction would provide a sufficient basis in and of itself to support either enhancement,

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Jones is inapposite. (See People v. Brandon (1995) 32 Cal.App.4th 1033, 1055 [finding
Jones inapposite where both the prior prison term enhancement and the prior serious
felony enhancement referred to multiple offenses]; People v. Wiley (1994)
25 Cal.App.4th 159, 164 [Jones did not preclude imposition of a section 667, subdivision
(a) enhancement based on two of three burglary counts and imposition of a section 667.5,
subdivision (b) enhancement based on third burglary count where all three burglary
counts had been charged in a single information and concurrent prison terms were
imposed].) Since there is no evidence in the record of an improper dual use of
enhancements, we find no error in the trial court’s imposition of a one-year prior prison
term enhancement under section 667.5, subdivision (b).
                                             II
                       Failure to Inquire and Appoint New Counsel
       Defendant next contends that the trial court erred by failing to conduct an adequate
inquiry into his allegations of ineffective assistance of counsel and by failing to appoint
new counsel to assist him in bringing a motion for new trial. In an undeveloped
argument made without a separate heading in this same section of his brief, defendant
adds that the trial court erred by denying his motion for a continuance to permit posttrial
counsel to investigate his assertion that two Redding police officers observed and
videotaped the encounter that led to his conviction.
       These contentions arise from the following additional facts:
       Defendant was represented at trial by Deputy Public Defender Timothy Prentiss.
Beginning shortly after the jury rendered its verdict, defendant was represented by
Deputy Public Defender Jeremy West. On January 29, 2015, West filed a motion for new
trial based on newly discovered evidence. The written motion explained that the defense
had “discover[ed] material evidence that could not have been produced at trial with
reasonable diligence.” (See § 1181, par. 8.) Although the final section of the written
motion pointed out that a “new trial may be granted where the trial Court finds that the

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defendant received ineffective assistance of counsel” and cryptically concluded, “[t]he
Court is requested to make findings in this regard,” no claim of ineffective assistance of
counsel was made by the motion. Rather, the motion stressed that Prentiss had not
known of this purported new evidence (of the victim’s tendency to hurt herself in a
myriad of ways and her lack of credibility), and Prentiss himself filed a declaration in
support of defendant’s motion stressing that he was not told about the possibility of
presenting this potentially favorable testimony at trial. The motion was set for hearing on
January 30, 2015, the same date as sentencing.
       At the hearing, West voiced an “additional request” as soon as the hearing
commenced, asking for the first time to continue the hearing because he had spoken with
defendant earlier in the day and was told for the first time that defendant believed there
were two eyewitnesses and a videotape that would exonerate him. In an unsworn
informal conversation with the court that followed this oral request by West, defendant
said that two Redding police officers witnessed and videotaped the incident giving rise to
this case and could testify that he did not hit the victim with a crowbar. Defendant also
claimed that he had known about these witnesses from the beginning, “[b]ecause I seen
them there . . . and they came and told me,” adding that he “tried to tell Mr. Prentiss, and
he wouldn’t listen to me.”
       The trial court denied West’s request for a continuance, finding it highly unlikely
that defendant was providing an accurate recitation of what occurred. In addition, the
trial court denied defendant’s motion for new trial, finding that defendant had not
identified any newly discovered evidence. In doing so, the court stated, among other
things, that defendant’s claim regarding the existence of exculpatory evidence (in the
form of several witnesses prepared to testify about the victim’s tendency to hurt herself in
a myriad of ways) was “uniquely within the defendant’s knowledge” and not “newly
discovered.”



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       Defendant does not challenge the denial of his motion for new trial on appeal.
Rather, he challenges the trial court’s reaction to his eleventh hour oral assertion at the
sentencing hearing that there were witnesses to his conduct about which he had tried and
failed to discuss with his previous lawyer.
       Although defendant argues on appeal that the court should have appointed new,
“conflict-free counsel” to assist him with his new trial motion, he never requested new
counsel in the trial court and he never raised a claim of conflict or even ineffective
assistance of counsel in the trial court. His argument on appeal has nothing to do with
what actually happened in the trial court. There, while defendant orally indicated to the
trial court (for the first time at the hearing), that Prentiss “didn’t listen to” him, defendant
never indicated dissatisfaction with West--his then-current attorney--or a desire to replace
West. He never claimed ineffective assistance of counsel, either through West or on his
own. At no time did defendant claim dissatisfaction with Prentiss for not calling
witnesses who would testify about the victim’s self-abuse and lack of credibility--the
subject of his new trial motion--rather, defendant submitted a declaration from Prentiss
showing that Prentiss was never informed about the evidence.
       Citing People v. Bolin (1998) 18 Cal.4th 297 at page 346, defendant points us to
the obvious, that if a defendant asks the trial court to appoint new counsel to prepare a
motion for new trial on grounds of ineffective assistance of counsel at trial, the court
should hold a hearing and it may, in its discretion, appoint new counsel for defendant.
But that request was not made in this case. Here, the new trial motion raised the claim of
newly discovered evidence and did not assert that prior defense counsel lacked diligence
in discovering it. The oral motion for a continuance requested time to investigate an
entirely new and different claim of additional evidence, raised for the first time at the
hearing by the defendant himself, accompanied by an assertion that his prior (not current)
attorney “didn’t listen to [him]” about it. The trial court did not err in declining to inquire
further about this new claim, and certainly did not err in failing to sua sponte appoint a

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new attorney for defendant (an appointment which we stress the court was never even
asked to make by either defendant’s current attorney or defendant himself during his
colloquy with the court).
       To the extent that defendant separately argues the trial court erred in denying him
a continuance, because he does not head and argue this point separately, it is forfeited.
(See Loranger v. Jones (2010) 184 Cal.App.4th 847, 858, fn. 9; Utz v. Aureguy (1952)
109 Cal.App.2d 803, 807-808.) In any event, defendant did not show good cause for
such relief. (§ 1050, subd. (e).) He did not file written notice as required. (§ 1050, subd.
(b).) He did not present any evidence supporting his outlandish, eleventh hour claim that
two Redding police officers witnessed and videotaped the incident giving rise to this
case. He did not explain why he waited until the date of sentencing--months after the
jury rendered its verdict--to inform his current counsel or the trial court or anyone (other
than Prentiss, who he said did not listen) about this evidence. There was no error. (Cf.
People v. Snow (2003) 30 Cal.4th 43, 77, 92 [no abuse of discretion in denying
continuance to investigate theory for new trial motion, where defendant had more than
two months after verdict to investigate theory and no explanation of why records had not
been investigated earlier].)
                                                  III
                                        Sentencing Errors
       Defendant contends that the restitution and parole revocation fines appearing in
the abstract of judgment must be stricken. He argues the restitution fine was not orally
imposed by the trial court, while the parole revocation fine can only be imposed in
addition to, and in the same amount as, the restitution fine.
       At the beginning of the sentencing hearing, the trial court stated that her tentative
decision was to follow the recommendation of the probation department. As relevant
here, the probation officer recommended the trial court impose a restitution fine under



                                              9
section 1202.4 in the amount of $10,000 and an additional $10,000 “restitution fine”
under section 1202.45, subdivision (a), suspended unless parole is revoked.
       After orally pronouncing defendant’s term of imprisonment, the trial court stated
as follows:
       “THE COURT: . . . There is an additional one thousand dollar restitution fine. I’m
going to lower that to $300. That’s ordered but suspended unless parole is revoked.
Actually, I don’t think I can. It has to match the original amount that was imposed. I
don’t know what his previous amount was.
       “THE CLERK: There was no previous.
       “THE COURT: So it is a three hundred dollar restitution fine suspended.”
       Neither the People nor defendant objected to this pronouncement. The resulting
minute order stated that “defendant shall pay a restitution fine of $300.00 pursuant to
Penal Code Section 1202.4,” and “an additional restitution fine in the amount of $300.00,
which shall be SUSPENDED unless defendant’s parole is revoked, pursuant to Penal
Code Section 1202.45.” These fines also appear in the abstract of judgment.
       “Under subdivision (b) of Penal Code section 1202.4, a trial court must impose ‘a
separate and additional restitution fine’ as part of the judgment of conviction entered
against a criminal defendant, ‘unless it finds compelling and extraordinary reasons for not
doing so, and states those reasons on the record.’ If the ‘sentence includes a period of
parole,’ then the court must also impose a parole revocation fine ‘in the same amount as
that imposed pursuant to subdivision (b) of Section 1202.4.’ ” (People v. Smith (2001)
24 Cal.4th 849, 851, fn. omitted.) The parole revocation fine, however, is automatically
suspended unless the trial court later revokes parole. (Ibid.)
       Contrary to defendant’s contention, the trial court did not fail to orally impose a
restitution fine. The record reflects that the trial court orally imposed and “suspended” a
“restitution fine” in the amount of $300. However, there is no statutory authority which



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allows a trial court to stay a restitution fine imposed under section 1202.4, subdivision
(b). (People v. Woods (2010) 191 Cal.App.4th 269, 272-273.)
       The People suggest that the trial court “intended to impose (rather than to
illogically suspend) a $300 restitution fine, as well as a matching $300.00 parole
revocation restitution fine.” In support of its position, the People reason that the parole
revocation fine is “routinely suspended per the statute”-- i.e., section 1202.45,
subdivision (c). While this may have been the trial court’s intention, a plain reading of
the reporter’s transcript does not support such a determination. Nothing in trial court’s
oral pronouncement of sentence supports the conclusion that the trial court ordered a
$300 restitution fine under section 1202.4, subdivision (b) and a $300 parole revocation
fine under section 1202.45, subdivision (a).
       Nor does the record support defendant’s contention that the trial court only
imposed a parole revocation fine under section 1202.45, subdivision (a). The transcript
simply reflects that the trial court orally imposed a “three hundred dollar restitution fine
suspended.” Moreover, the trial court’s stated “tentative” decision, as well as the court’s
minute order and the abstract of judgment, do not support such a determination.
       The imposition and suspension of restitution fine under section 1202.4,
subdivision (b), and failure to impose the mandatory parole revocation fine under section
1202.45, subdivision (a) resulted in an unauthorized sentence. (See People v. Woods,
supra, 191 Cal.App.4th at p. 273 [when the court imposes and stays a restitution fine, it
acts “in excess of the court’s jurisdiction, [and the order] must be set aside”]; People v.
Rodriguez (2000) 80 Cal.App.4th 372, 378 [where the trial court imposes a restitution
fine under § 1202.4, its omission of a concomitant, mandatory parole revocation fine
under § 1202.45 in the same amount results in an unauthorized sentence].) The clerk’s
attempt to correct the trial court’s errors is ineffectual, because any discrepancy between
the oral pronouncement of judgment and the court’s minute order and the abstract of



                                               11
judgment is resolved in favor of the oral pronouncement. (People v. Farell (2002)
28 Cal.4th 381, 384, fn. 2; People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.)
       We shall modify the judgment to strike the order suspending the restitution fine,
leaving the order imposing the $300 restitution fine intact, and impose a $300 parole
revocation fine, which is suspended unless parole is revoked. (See People v. Rodriguez,
supra, 80 Cal.App.4th at p. 378 [failure to impose a parole revocation fine in the same
amount as the restitution fine is an unauthorized sentence which may be corrected for the
first time on appeal].) Because as we have described ante the abstract of judgment
already includes these modifications, it need not be amended.
                                     DISPOSITION
       The judgment is modified to strike the order suspending the restitution fine and
impose and stay a $300 parole revocation fine as described in this opinion. As modified,
the judgment is affirmed.



                                                       /s/
                                                 Duarte, J.



We concur:



      /s/
Raye, P. J.



      /s/
Blease, J.




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