Filed 1/12/16 P. v. Ford CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062452

v.                                                                       (Super.Ct.No. RIF1400059)

TERRANCE DEON FORD,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.

Affirmed.

         Anthony J. Dain, 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, and Peter Quon, Jr., and

Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.




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       A jury convicted defendant Terrance Deon Ford1 of misdemeanor domestic

battery (Pen. Code,2 § 243, subd. (e)(1); count 13), assault with force likely to produce

great bodily injury (§ 245, subd. (a)(4); count 2), and attempting to dissuade a crime

victim from reporting a crime (§ 136.1, subd. (b)(1); count 4).4 After a separate bench

trial, the trial court found true allegations of three prior serious felony convictions and

three prior strike convictions. Defendant was sentenced to an aggregate prison term of 40

years to life, consisting of 25 years to life with respect to count 4, plus three consecutive

five-year terms for the serious felony conviction priors.

       On appeal, defendant raises two claims of error. First, he contends his conviction

on count 4 should be reversed because the trial court failed to give a unanimity

instruction for that crime. Second, he argues that, to the extent the count 4 conviction is

not reversed, the case nevertheless should be remanded for resentencing because the trial

court misunderstood the scope of its sentencing discretion when it denied defendant’s



       1 Defendant’s middle name is spelled “Dean” at various points in the record,
including his own briefing on appeal. We will use Terrance Deon Ford, because it is
shown as “Deon” when he spelled his name at trial, in the abstracts of judgment from his
prior conviction in 1988, in his signature on a fingerprint card, and in his Notice of
Appeal.

       2   Further undesignated statutory references are to the Penal Code.

       3 Count 1 had been charged as felony spousal abuse (§ 273.5, subd. (a)), but the
jury found defendant guilty only of the lesser included offense.

       4  The jury failed to reach a verdict on an additional count of making a criminal
threat (§ 422 (count 3)), and that count was subsequently dismissed in the interest of
justice.

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motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)

to strike his prior convictions. We affirm.

                    I. FACTS AND PROCEDURAL BACKGROUND

       The prosecution presented evidence—principally through the testimony of the

victim, a cohabitant and the mother of his child—that on the evening of October 20,

2013, defendant became violent during an argument at their residence. Among other

things, the victim testified that defendant squeezed her head with his arm using such

force that she “felt [her] teeth shifting.” Later, defendant bit victim’s finger so hard that

she initially thought he had bitten the finger off and looked for it on the floor. Defendant

also “clubbed” the victim in the side of the head with a closed fist, and slammed the back

of her head into a wall hard enough to leave a hole in the wall.

       The victim further testified that during the altercation she told defendant that she

was going to call the police. In response, defendant said that he was leaving, and told the

victim not to “block [his] pathway” or he would “[f---] [her] up.” Defendant indeed did

leave the apartment, but called the victim outside shortly thereafter, ostensibly to get her

things out of his car. The victim did so, believing that defendant would not do anything

to her in public, and worried that he would destroy her belongings. Outside, defendant

adopted a conciliatory tone, apologizing, promising better behavior in the future, and

inviting victim to walk with him to go get a beer. The victim told defendant “you know

you’re going to get in trouble. I don’t want to call the police, but you can’t keep putting

your hands on me.” Defendant and victim walked together for a short distance, but when

they reached a dark, secluded area, defendant looked around and then said “you F’ed up

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now, cuz,” and “I’m going to f you up now, cuz.” At that point, the victim ran away,

toward a security guard who was sitting in a car. Defendant left the area when the guard

got out of the car, running to his own car and driving away.

       A couple of days later, according to the victim, she spoke to defendant by

telephone, when he called her. Defendant was initially apologetic, and then asked

whether she had called the police. When the victim told defendant that she had, he

responded “[Y]ou going to make an M. F. end up killing you, cuz.”

       At trial, the prosecution also presented evidence—again, through the testimony of

the victim—of three prior, uncharged incidents of domestic violence by defendant against

the victim; one in June 2013, another in July 2013, and a third in August 2013.

       Defendant’s jury trial commenced on September 29, 2014, and the jury returned

its verdicts on October 6, 2014. The bench trial on defendant’s priors was held on

October 10, 2014, and the court issued its rulings on the same date.

       On November 14, 2014, the trial court heard oral argument on defendant’s Romero

motion. Defendant’s prior strike convictions included a 1988 robbery conviction, and

two assault convictions in 1990.5 The robbery conviction arose from defendant’s

participation in the robbery of two victims at gunpoint. One of the 1990 assault

convictions was based on an incident on July 13, 1989, when defendant assaulted a


       5 We note that defendant benefitted from the prosecution’s decision to charge him
only with three prior strike convictions; it appears from the record defendant was actually
convicted of two counts of robbery in 1988. Defendant therefore apparently could have
been charged with four prior serious felony and strike convictions, though only three
were alleged by the prosecution.

                                             4
victim without provocation, using brass knuckles, in addition to feet and fists, and

continuing to strike the victim while he was dazed and defenseless. This assault left the

victim with a severely broken jaw, seven chipped teeth, and a jaw wired shut for three

months. The second 1990 assault conviction was based on events of September 23, 1989,

during which defendant approached two victims who were sitting in a car. Defendant

punched one victim in the head while he was in the car, and then struck him again several

times when he got out of the car. The second victim exited the car to try to break up the

fight; defendant struck him in the head, too, and directed his companions to join in. The

second victim was beaten unconscious, but defendant continued assaulting him. At one

point, the defendant climbed on the bumper of a vehicle and jumped onto the second

victim’s head. According to the People’s opposition to defendant’s Romero motion, the

second victim was left in a coma for three months. In addition to these strike offenses,

defendant was convicted in 2001 of transporting narcotics for sale (Health & Saf. Code,

§ 11379, subd. b). As the trial court observed, as a result of these convictions, there has

been no significant stretch of time during defendant’s adult life that he has been out of

custody.6 Instead, each time he has been released after serving time on a previous

offense, he has been quickly returned to prison, usually as the result of a new felony

conviction. The trial court stated that it “truly . . . looked for reasons to exercise [its]

discretion” to grant the motion, but found none, and denied the Romero motion on that

basis.


         6   Defendant turned 18 in 1988.

                                                5
       On the same date, after denying defendant’s Romero motion, the trial court

imposed sentence. The sentence imposed consisted of 25 years to life with respect to

count 4 under the Three Strikes Law; a concurrent six-year term for count 2, stayed

pursuant to section 654; and a concurrent 365-day sentence for count 1. The trial court

also gave defendant five years for each of the three serious felony priors, but stayed those

sentences, citing “the interest of justice given the fact that they’re the same priors used to

enhance Count 4 for the life sentence.” On January 9, 2015, however, at the request of

the People, the trial court reconsidered its previous order. The trial court concluded that,

pursuant to section 1385, it did not have the authority to stay or run concurrent the terms

on the three serious felony priors. On that basis, the trial court vacated its previous order,

and imposed sentence again, this time without the stay on the sentences for the priors, for

a total aggregate sentence of 40 years to life.7

                                     II. DISCUSSION

A. No Unanimity Instruction Was Required with Respect to Count 4.

       Defendant contends that the trial court erred by not instructing the jury on

unanimity with respect to count 4, arguing that evidence was presented of five different

instances of defendant attempting to dissuade the victim from reporting a crime, any of

which could have provided the factual basis for that conviction.8 Specifically, defendant

points to the three uncharged instances of domestic violence, the events of October 20,

       7 Additional details are discussed below, as necessary to address defendant’s
claims of error.

       8   The jury was instructed on unanimity with respect to count 1.

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2013, and the telephone discussion between defendant and the victim several days later.

We find no error.

       “‘It is fundamental that a criminal conviction requires a unanimous jury verdict

[citation].’” (People v. Thompson (1995) 36 Cal.App.4th 843, 850.) “Where the jury

receives evidence of more than one factual basis for a conviction, the prosecution must

select one act to prove the offense, or the court must instruct the jury that it must

unanimously agree on one particular act as the offense.” (People v. Jantz (2006) 137

Cal.App.4th 1283, 1292.) Where the prosecution makes an election of one act to prove

the offense, that election must be “clearly communicated to the jury.” (People v.

Melhado (1998) 60 Cal.App.4th 1529, 1539.) “This requirement of unanimity as to the

criminal act ‘is intended to eliminate the danger that the defendant will be convicted even

though there is no single offense which all the jurors agree the defendant committed.’”

(People v. Russo (2001) 25 Cal.4th 1124, 1132.)

       Here, the prosecutor clearly communicated to the jury that the charged offense of

dissuading a witness was based on the events late in the evening on October 20, 2013.

During closing argument, the prosecutor told the jury that count 4 was based on

defendant’s threats made during that altercation. The prosecutor stated: “This is before

he slams her head in the wall. This is after the clubbing and after he wraps his hand

around her face cutting her lip . . . She’s yelling for help. . . . She says I’m calling the

police and he says ‘I’m going to fuck you up.’ That is dissuading a witness.”

       The prosecution also explicitly distinguished for the jury defendant’s efforts to

dissuade the victim from calling the police on October 20, 2013, from other alleged

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criminal threats that were the basis for count 3, including threats made by telephone

several days after the October 20, 2013 altercation. As the prosecutor explained to the

jury, “[d]issuading, the Count 4, it’s acts or words . . . to try and stop [the victim] from

calling the police,” whereas, a criminal threat for count 3 “doesn’t have to be connected

to anything.” The victim testified that she told defendant she had already talked to the

police before defendant made additional threats during their telephone conversation a few

days after October 20, 2013. And the evidence suggests only that those additional threats

were a reaction to past events—there is nothing in evidence to suggest defendant was

attempting to prevent the victim from making a further report to police, as defendant

speculates in briefing on appeal.

       Of course, section 136.1 is broad enough to cover a defendant’s attempt to

dissuade a witness from participating in trial or other proceedings that may occur after a

police report is filed. (See § 136.1, subds. (a)(1), (2).) It does not necessarily follow,

therefore, as a general matter, that threats made after a police report already has been

filed could not result in a violation of section 136.1. In this case, however, the jury’s

instructions with respect to count 4 limited the definition of the offense to an attempt to

dissuade the victim “from making a report that she was a victim of the crimes spousal

abuse and assault.” Additionally, the jury was correctly instructed with respect to the

proper uses of evidence of uncharged conduct, and told that the three incidents prior to

October 20, 2013, constituted uncharged conduct. (See People v. Diaz (1987) 195

Cal.App.3d 1375, 1382 [limiting instruction “preserves the requirement that the jury be



                                               8
unanimous because the use of uncharged acts is carefully restricted by the instruction,”

and a jury is presumed to follow instructions given to it.].)

       On these facts, there was no danger of the jury convicting defendant on count 4

even though there was no single offense that all the jurors agreed defendant committed.

The trial court therefore had no duty to provide the jury with an instruction on unanimity

with respect to that count.

       Defendant’s arguments to the contrary notwithstanding, People v. Melhado (1998)

60 Cal.App.4th 1529 (Melhado) is distinguishable from this case. In Melhado, the

prosecutor’s closing argument was ambiguous, mentioning several different acts that

could have served as the charged offense of making a terrorist threat, though arguably

emphasizing only one of them, while downplaying the others. (Id. at pp. 1535-1536.)

The court of appeal found on that basis that the prosecutor had not clearly informed the

jurors of his election, and the combination of the prosecutor’s argument and the

instructions provided did not adequately inform the jurors, so it was error for the trial

court to have failed to give a unanimity instruction. (Id. at p. 1536.)

       In contrast, here, the prosecution was not ambiguous about which events were the

basis of the various charges, specifically pointing to the events of October 20, 2013, as

the basis for count 4. The jury was instructed that the evidence of three prior incidents of

domestic violence was evidence of uncharged conduct, not the basis of any current

charges. Further, evidence of a threat made after a defendant has been told police already

have been called may well be evidence of a criminal threat, but is not evidence of an

attempt to dissuade the victim from reporting a crime, at least under the definition of the

                                              9
offense given to this jury, and given the evidence that defendant had been told the crime

had already been reported. Thus, even if the prosecution did not say in so many words

that it was “electing” to base count 4 on the events of October 20, 2013, on the present

record there was no room for the sort of jury confusion that unanimity instructions are

designed to prevent.

       In short, we find no error with respect to the jury’s instructions, or lack thereof, on

unanimity.

B. The Trial Court Did Not, Ultimately, Misunderstand the Scope of Its Sentencing

Discretion.

       Defendant contends that the trial court misunderstood the scope of its sentencing

discretion in ruling on defendant’s Romero motion and imposing sentence, based on the

trial court’s initial, erroneous stay of the three five-year sentences imposed for his serious

felony priors, and comments made by the trial court during sentencing. Defendant

suggests the trial court, having determined that serious felony prior sentences could not

be stayed or run concurrent, could and should have reconsidered its ruling with respect to

the Romero motion and reached “an actual, aggregate sentence in the neighborhood of 25

years” by an alternate route, specifically, by granting the Romero motion, sentencing

defendant as a second striker on count 4, running the sentence on count 2 consecutive to

that sentence, and imposing the three five-year serious felony priors consecutively. We

find no error.

       Section 1385, subdivision (a) authorizes a trial court to strike prior conviction

allegations and/or findings in cases brought under the Three Strikes law. (Romero, supra,

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13 Cal.4th at pp. 529-530.) However, a “court’s discretion to strike prior felony

conviction allegations in furtherance of justice is limited.” (Id. at p. 530.) “[I]n ruling

whether to strike or vacate a prior serious and/or violent felony conviction allegation or

finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’

pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the

court in question must consider whether, in light of the nature and circumstances of his

present felonies and prior serious and/or violent felony convictions, and the particulars of

his background, character, and prospects, the defendant may be deemed outside the

scheme’s spirit, in whole or in part, and hence should be treated as though he had not

previously been convicted of one or more serious and/or violent felonies.” (People v.

Williams (1998) 17 Cal.4th 148, 161.) A trial court abuses its discretion in failing to

strike a prior felony conviction allegation only in the “extraordinary case . . . where the

relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the

striking of a prior conviction and no reasonable minds could differ . . . .” (People v.

Carmony (2004) 33 Cal.4th 367, 376.)

       The record reveals the trial court was fully informed of and considered the nature

and circumstances of defendant’s present felony and his prior serious felony convictions,

as well as the particulars of his background, character, and prospects. As the trial court

noted, defendant’s strike convictions involved extremely violent conduct injuring four

different victims, including serious injuries to several of them. Furthermore, defendant

had repeatedly demonstrated an inability to refrain from committing additional felonies in

the brief interludes between his long periods of incarceration. This is hardly the

                                              11
extraordinary case where the relevant factors manifestly support the striking of a prior

conviction. To the contrary, the record strongly supports the trial court’s conclusion that

defendant falls squarely within the spirit of the Three Strikes law.

       Defendant argues that the trial court’s conclusions regarding the nature and

circumstances of his current offense were premised on a misunderstanding of its

sentencing discretion, in that the court believed it could stay the three five-year sentences

for defendant’s serious felony priors, resulting in an aggregate sentence of 25 years to

life. He characterizes the trial court as having found it to be “unfair” to impose a

sentence greater than that. We disagree both with defendant’s characterization of the

record, and his understanding of the trial court’s discretion. The court expressed

willingness to exercise its discretion to impose the lightest sentence possible within the

confines of the Three Strikes law, emphasizing that it was not “looking” to give

defendant additional time, and later remarking that it found the initial sentence of 25

years to life “more than appropriate.” It also initially expressed concern about

procedural unfairness in imposing additional, separate sentences for serious felony priors

based on the same convictions that resulted in enhancement of defendant’s sentence for

court 4. However, under the Three Strikes law, enhancements are used in “two distinct

ways: to calculate the minimum term of the indeterminate life sentence and to add an

additional, determinate term to be served before the indeterminate life sentence [for each

prior serious felony conviction].” (People v. Williams (2004) 34 Cal.4th 397, 403.)

Having found no basis in the record to deem defendant outside the spirit of the Three

Strikes law under Romero and its progeny, based in particular on the violence of both his

                                             12
current and previous offenses and his chronic recidivism, the trial court had no discretion

to impose an aggregate sentence of less than the one it ultimately imposed.

       People v. Garcia (1999) 20 Cal.4th 490 (Garcia), a case emphasized by defendant,

does not require a different result. Defendant reads Garcia essentially as an open

invitation for a trial court to use Romero motions to escape the boundaries on judicial

discretion imposed by the Three Strikes laws. We do not read Garcia so broadly. In

Garcia, the California Supreme Court held that a trial court sentencing a defendant under

the Three Strikes law has discretion to dismiss strike allegations on a count-by-count

basis. (Id. at p. 500.) The court explained that in exercising its discretion under Romero

and People v. Williams, supra, 17 Cal.4th 148, the trial court must consider the nature

and circumstances of the current felonies on an individualized basis, and that analysis

may differ considerably from count to count. (Garcia, supra, at pp. 499-500.) Among

other things, “once the trial court had sentenced defendant to a term of 30 years to life for

[one count], his ‘prospects’ for committing future [crimes] diminished significantly,”

changing the Romero analysis with respect to other counts. (Garcia, supra, at p. 500.)

This holding, however, has no application to the facts of this case.

       Put another way: Garcia allows trial courts discretion to dismiss strike allegations

on a count-by-count basis to avoid unjust stacking of multiple indeterminate terms for

defendants with multiple current offenses potentially subject to enhancement under the

Three Strikes law. Here, defendant was only sentenced to a single count enhanced by the

Three Strikes law to an indeterminate life term, plus the required additional determinate

terms for the pleaded and proven serious felony priors. Garcia is simply inapposite.

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      The trial court initially misunderstood the scope of its sentencing discretion, but

corrected that misunderstanding, and properly imposed an aggregate sentence of 40 years

to life. As such, defendant has demonstrated no error.

                                     III. DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               RAMIREZ
                                                                                       P. J.
We concur:

      MCKINSTER
                                J.

      MILLER
                                J.




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