Filed 7/15/19

                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                       D075380

        Plaintiff and Respondent,

        v.                                        (Super. Ct. No. RIF1501014)

DANIEL FRANK SEXTON,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of Riverside County,

Elaine M. Kiefer, Judge. Affirmed in part; reversed in part with directions.

        William J. Capriola, by appointment of the Court of Appeal, for Plaintiff and

Respondent.

        Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige

Boulton Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
          Defendant Daniel Frank Sexton was convicted of several crimes committed

against Jane Doe, his ex-wife. 1 During the course of the investigation, Jane first accused

him of domestic violence, later recanted her allegations, and then reverted to her original

statements. At trial, the jury received testimony from an expert who offered her

professional opinion about statements typically made by victims of intimate partner

battering. Specifically, the expert asserted that it is not unusual for victims of intimate

partner battering to cycle between periods of seeking assistance from law enforcement

and of supporting their battering partners, including by making false statements to the

police.

          On appeal, Sexton challenges CALCRIM No. 850, the standard jury instruction

regarding testimony by complaining witnesses in cases in which the jury also hears

evidence from an expert in intimate partner battering. The instruction directs the jury to

limit their consideration of the expert testimony to their evaluation of whether the alleged

victim's conduct was not inconsistent with the conduct of a victim who had been abused.

The instruction further directs the jury to take this analysis (of the consistency of the

alleged victim's conduct with that of a victim of intimate partner battering) into account

in evaluating the believability of the alleged victim's testimony. Immediately preceding

these directions, in its second sentence, the instruction plainly asserts that the expert

testimony "is not evidence that the defendant committed any of the crimes charged

against [him]."


1         We refer to the victim as Jane Doe, intending no disrespect.

                                               2
       Sexton claims the instruction would lead reasonable jurors to believe it directs

them to impute their assessment of the credibility of an expert to that of the complaining

witness with respect to the factual evidence of the alleged crimes. In other words, the

instruction would suggest that if jurors find the expert to be credible, they should find the

witness credible too. But the text of the instruction does not allow for an interpretation of

this sort, and the instruction is not otherwise ambiguous or vague. Furthermore, the

record indicates neither confusion on the jury's part, nor divergence from the standard

text, nor any likelihood of misunderstanding the court's discussion of the instruction.

       Sexton raises several additional issues. He claims that because Arizona's robbery

statute does not contain all the elements of California's, including asportation, the true

finding on the alleged Arizona prior conviction must be reversed and the five-year prior

serious felony enhancement stricken. He also argues that the statutory dual punishment

ban requires that the sentence on either count 3 (domestic violence) or count 4 (assault

with force likely to cause great bodily injury) be stayed given that both counts were

predicated on the same physical assault as part of a single course of conduct that had one

objective, the infliction of physical and emotional harm on Jane. As discussed below, we

agree with each of these arguments. Finally, Sexton seeks remand for the trial court to

consider whether it should strike his prior serious felony enhancement under Senate Bill

No. 1393, which the People concede is appropriate.

       Accordingly, we reverse in part and provide directions to the trial court—to strike

the prior serious felony enhancement and true finding regarding the Arizona robbery

allegation, reconsider the sentence for the remaining prior serious felony enhancement in

                                              3
light of Senate Bill No. 1393, stay the sentence on either count 3 or count 4, and

resentence as to all counts. In all other respects, we affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     Background

       Jane and Sexton's dating relationship began in 2007; by October they started to

live together. They had two children—a son and a daughter—and were married in

November 2010.

B.     Incidents of Domestic Violence

       1.     Uncharged Incidents Before 2014

       Jane testified about two incidents of uncharged domestic abuse committed by

Sexton before 2014. In 2007, he pulled her out of the shower by her hair and slammed

her against the wall by her throat. In 2011, he shoved her while she was holding their

infant son.

       2.     The July 2014 Incident (Counts 1–5)

       At some point during July 2014, Jane told Sexton she wanted a divorce. On July

22, 2014, he told her that he would be in the house to pack up his belongings and leave,

and not to come home until he had left. After some time, he sent her a text message

falsely telling her that he had left and she could return to the house.

       When Jane arrived home she found Sexton unconscious on the floor with a bottle

of vodka nearby. But when he awoke, he seized her by the throat and began choking her.

He told her that she should not have come home and threatened to kill her. She tried to

escape and run after their children, who had fled the room, but he grabbed her by the hair

                                              4
and continued to choke and threaten her. Sexton demanded sex; she stopped resisting;

and he removed her clothes and tampon. He attempted to engage in sexual intercourse,

but he could not produce an erection. At that point, he grabbed her by the hair, forced her

mouth onto his penis, demanded oral copulation, threatened to kill her if she did not

comply, and ejaculated into her mouth. She then vomited on him.

       At work the following day, Jane's coworker observed marks on her neck that were

"very faint" and "not very visible." Jane told the coworker about the assault and asked

her to call the police if she ever missed work. When she returned home from work,

Sexton apologized and promised he would never do something like that again.

       3.     The August 2014 Incident (Counts 6-7)

       On August 15, 2014, Jane and Sexton argued about her attitude towards him since

the July 2014 incident. According to Jane's testimony, he pushed her onto the floor,

grabbed her by the throat, and picked up a ceramic vase over his head as if to strike her

with it. He also verbally threatened to kill her.

       4.     The February 2015 Incident (Count 8)

       In early February 2015, Jane decided to separate from Sexton. Without telling

him, she and their children left the house and moved in her with her sister. A couple

weeks later, Sexton called Jane and demanded she return home. He threatened: "If you

don't come home by tomorrow, it's open season on anything and everything you love and

care about." Jane's sister overheard the threat. Jane then contacted law enforcement,

filed a report, and the following day obtained a temporary restraining order against him.



                                              5
       5.     The Uncharged March 2015 Incident

       On a morning in March 2015, Sexton appeared unannounced at Jane's sister's

house, where Jane and the children were living, just as she was leaving with the two

children. He pulled a gun and pointed it at her face, and the children ran off screaming.

She tried to call 911 on her phone, but he threatened to kill her if she refused to put the

phone down. They then together searched for and found the children, and they all

returned to their own home together. With a gun on the table in front of him, Sexton

threatened Jane again once they arrived. He told her to lie to her sister and say that she

had decided to return to him of her own free will. He later directed her to testify that she

had fabricated the allegations to gain leverage in their custody dispute when the domestic

violence allegations proceeded to trial.

C.     Jane's Changing Allegations and Law Enforcement's Investigation

       After Jane reported Sexton to the City of Riverside police in February 2015, a

patrol officer interviewed her. She discussed several incidents of domestic violence and

described the incident from July 2014 as the most serious. Jane was also interviewed by

a Riverside County deputy sheriff, and in March 2015, Jane's sister was interviewed by a

Riverside police detective.

       In April 2015, Jane informed law enforcement that she no longer wished to press

charges against Sexton. She was told that irrespective of her assistance, there was

enough evidence to proceed. Jane then recanted and said she fabricated the allegations.

       More than a year and a half later, in January 2017, Jane spoke with an investigator

in the Riverside County District Attorney's Office. She told him that her initial

                                              6
allegations were true and that she had lied when she recanted so that she could protect

Sexton from prosecution. Shortly thereafter, Jane's coworker was interviewed by the

same investigator. The coworker stated that Jane told her about the July 2014 incident

the day after it happened, including that Sexton choked her and forced her to have sex

with him. She also reported having seen a bruise on Jane's arm at the time.

D.     The Charges

       Sexton was charged with eight offenses relating to the abuse of Jane. Five of the

charges pertained to the July 2014 incident: attempted spousal rape (Penal Code §§ 262,

subd. (a)(1) & 664; count 1) 2; forcible oral copulation (former § 288a, subd. (c)(2)(A);

count 2) 3; domestic violence (§ 273.5, subd. (a); count 3); assault with force likely to

cause great bodily injury (§ 245, subd. (a)(4); count 4); and criminal threats (§ 422; count

5). Two concerned the August 2014 incident: criminal threats (§ 422; count 6) and

assault with a deadly weapon, i.e., a glass vase (§ 245, subd. (a)(1); count 7). And count

8, criminal threats, related to the February 2015 incident (§ 422; count 8). The

prosecution alleged two prior serious felony convictions under section 667, subdivision

(a)(1), which were also alleged as strike priors under the same section, subdivisions (b)–

(i), and section 1170.12. At Sexton's request, the prior serious felony conviction

allegations were bifurcated.

E.     The Trial

2      All statutory references are to the Penal Code except where otherwise indicated.

3    Penal Code section 288a was amended without substantive change and
renumbered to section 287, effective January 1, 2019. (Stats. 2018, ch. 423, § 49.)
                                              7
       1.     The Children's Testimony

       Both of Jane's and Sexton's children testified. Their daughter testified that when

the family was living together, she witnessed loud arguments and two incidents in which

Sexton hit Jane. She said that when she was living with Jane and her brother at her aunt's

house, Sexton came to the house and "pulled up a gun," after which she and her brother

ran away. The son testified that although he never saw Sexton hit Jane, he recalled the

morning his father came to his aunt's house with a gun. He thought that Sexton was

going to shoot Jane.

       2.     Expert Testimony on Intimate Partner Battering and Domestic Abuse

       A detective and master investigator for the Riverside County Sheriff's Department

testified as an expert on intimate partner battering and domestic abuse. She discussed the

ways in which a victim of domestic violence can become slowly acclimated to various

forms of abuse and the challenges victims face in recognizing abuse when the abusive

behavior occurs gradually. The expert opined relationships that include intimate partner

battering typically cycle through several phases. First, there is a "tension building phase

where things are getting worse," followed by an "explosion phase where the crisis

moment happens," and then a "honeymoon phase," after which victims often return to

their battering partners. She also asserted that during the honeymoon phase of this cycle,

it is common for victims to not cooperate with law enforcement's investigation of their

partners, to recant their statements, and provide a new narrative.




                                             8
       3.     Incidents of Domestic Violence Against Other Women

       In addition to Jane, three other women testified about abuse by Sexton. The first,

Sexton's ex-wife, stated that in August 2005 after an argument about finances, she awoke

to find Sexton choking her. She hit him and kicked him in defense, and he punched her

in the face. She also explained that he was engaged in heavy drug use at the time. The

second, an ex-girlfriend, testified that in April 1997 Sexton attacked her by hitting her,

choking her, and pinning her to the ground. She reported the incident to the Phoenix

Police Department. The third, another ex-girlfriend, testified that in November 1999

Sexton hit her several times during an argument, which left a bump on her head, and

threatened to kill her.

       4.     Sexton's Defense

       Sexton elected to testify in his own defense and denied all incidents of abuse

against Jane. He admitted he had abused the three other women as they described in their

testimony. He acknowledged his jealousy during the early part of his relationship with

Jane, asserting that she would frequently receive calls and text messages from sometimes

drunk ex-boyfriends, but he denied pulling Jane out of the shower by her hair or being

violent with her. He discussed his concern about Jane and the children living with Jane's

sister, whom he believed to be unstable. He admitted buying a gun, which was illegal

due to his status as an ex-felon. He did not believe that Jane was aware he owned a gun.

As to the incidents giving rise to the specific allegations, Sexton admitted that he and

Jane engaged in oral sex during the July 2014 incident but stated it was consensual, and

he denied choking her and attempting sexual intercourse against her will. He denied the

                                              9
allegations relating to the August 2014 incident. On the February 2015 criminal threat

allegations, he admitted calling Jane on the day in question but denied making the

specific threat alleged and denied threatening to kill her.

F.     Verdict and Sentencing

       The jury found Sexton guilty on counts 1 through 5 (the July 2014 incident) and

count 8 (the February 2015 incident). He was acquitted on count 6 for criminal threats

during the August 2014 incident. On count 7, arising from that same incident, the jury

found him not guilty of assault with a deadly weapon but deadlocked on the lesser

included offense of simple assault under section 240, on which the trial court declared a

mistrial. Following discharge of the jury, the court found the allegations of Sexton's prior

convictions to be true, but exercised its discretion under section 1385 and struck one of

the two strike priors. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)

       Sexton was ultimately sentenced to state prison for a total term of 29 years and

four months as follows: 12 years for count 2, the designated principal count (doubled the

middle term); a consecutive two-year term each for counts 1, 3, and 4 (one-third the

middle term, doubled); a consecutive one-year and four-month term for count 8 (one-

third the middle term, doubled); the sentence for count 5 stayed (§ 654); and a

consecutive 10-year term for the two five-year serious felony enhancements.




                                             10
                                       DISCUSSION

A.     The Intimate Partner Battery Jury Instruction Was Not Erroneous.

       The trial court provided the jury with CALCRIM No. 850, "Testimony On

Intimate Partner Battering and Its Effects: Credibility of Complaining Witness," in its

standard form as follows:

          "You have heard testimony from [an expert] regarding the effect of
          intimate partner battering.

          "[The expert's] testimony about intimate partner battering is not
          evidence that the defendant committed any of the crimes charged
          against him.

          "You may consider this evidence only in deciding whether or not
          [Jane's] conduct was not inconsistent with the conduct of someone
          who has been abused, and in evaluating the believability of her
          testimony."

       Sexton challenges CALCRIM No. 850 in two ways. First, he claims it is

"impossible to allow the jury to use expert testimony about intimate partner battering 'in

evaluating the believability of [the alleged victim's] testimony', . . . without allowing

them to use it as proof that the complaining witness is telling the truth." Second, he

contests the narrowness of "the crimes charged against," arguing that this phrase "does

not preclude the jury from using intimate partner battering evidence as proof the

defendant committed uncharged crimes, from which the jury can then infer the defendant

was disposed to commit the charged crimes."

       In response, the People argue that the claim was forfeited for failure to object. On

the merits, they contend it fails because of the instruction's express meaning, the court's



                                              11
appropriate admonishment that the jury was not to consider the expert testimony as

evidence of Sexton's guilt, and that regardless, any error was harmless.

       We review the claim of instructional error de novo, " 'in the context of the

instructions as a whole and the trial record.' " (People v. Jablonski (2006) 37 Cal.4th

774, 831; People v. Waidla (2000) 22 Cal.4th 690, 733.) Generally, an instruction may

not be challenged on appeal unless the party made an appropriate objection at trial.

(People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) But a challenge may be raised

where the claim, like Sexton's here, alleges that the instruction was not correct in law or

affected the defendant's substantial rights. (§ 1259; People v. Hudson (2006) 38 Cal.4th

1002, 1011–1012 [not correct in law]; People v. Andersen (1994) 26 Cal.App.4th 1241,

1249 ["Ascertaining whether claimed instructional error affected the substantial rights of

the defendant necessarily requires an examination of the merits of the claim"].)

       As presented to the jury—i.e. in full, alongside the rest of the applicable

instructions—CALCRIM No. 850 provides a clear, important and helpful reference.

When jurors must decide whether to believe a witness's testimony, one thing they may

reasonably consider is whether the witness's conduct is consistent with their expectations

for an individual under the circumstances of the case. When those circumstances are the

routine sort, the analysis might be straightforward. For instance, if the victim of an

alleged carjacking provides wildly inconsistent descriptions of the perpetrator at different

times, common sense may suggest that the victim's recollection of specific details should

be questioned.



                                             12
       But when the facts are farther afield from a typical juror's life experience, or when

they contrast with expectations for what may appear to be similar crimes, it can be

helpful to hear from an expert on the relevant reference point. Intimate partner battering

often presents such a case. Jurors typically expect the victim of a serious crime to report

the incident as soon as possible. And they often view a significantly changing story as

evidence that the allegations may be less than truthful. But as the expert in this case

discussed, victims of intimate partner battering often act in ways that contrast with the

actions of victims of other serious crimes. With that information in mind, the jury would

have a more accurate reference for how to judge the victim's behavior and the consistency

of the testimony. Rather than consider the testimony in relation to that of a typical

witness or an alleged victim of serious assault generally, the jury ought to evaluate it with

respect to an alleged victim of intimate partner battering.

       Sexton does not challenge the purpose or principles supporting the use of the

instruction, but argues that the text gets in its own way. Specifically, he points to the last

phrase of the last sentence, which instructs the jury to consider the expert testimony "in

evaluating the believability of the [alleged victim's] testimony." Because that phrase

"authorized the jury to consider [the expert] testimony as evidence that Jane Doe was

telling the truth, the jury would naturally infer that because the expert had described

behaviors that matched those of Jane Doe in this case, she must have been telling the

truth when she testified to abuse and lying when she denied it."

       But Sexton's argument skates through its analysis of the phrase on which it relies,

and it fails to interpret the text in context. The allegedly impermissible phrase—"and in

                                              13
evaluating the believability of [Jane's] testimony"—expressly indicates that the jury is to

evaluate the believability of Jane's testimony, not mechanically transfer their evaluation

of the expert to Jane's statements. Furthermore, the trial court provided instructions on

evaluating conflicting evidence and on limited purpose evidence in general, so they

understood that "[w]hat is important is whether the testimony or any other evidence

convinces" them. (CALCRIM No. 302.)

       Read in context, the last sentence of the instruction contains a direction with

specific and general aspects. Specifically, the jury is to use the expert testimony to help

ground its analysis of the consistency of the complaining witness's conduct (by using a

more informed reference point). The jury is then to use this 'consistency' analysis in its

general evaluation of the believability of the complaining witness's testimony. In

isolation, the breadth of the language in the last phrase might allow for a question

regarding the manner in which the expert's testimony ought to bear on the jury's

evaluation of the believability of the witness, but the first part of the sentence effectively

resolves any such confusion. Reasonable jurors would not understand the instruction to

mean that if they find the characteristics of intimate partner battering to be satisfied, this

indicates that Jane was necessarily telling the truth. (See People v. Brackins (July 2,

2019, H043584) __ Cal.App.5th __ [2019 Cal.App. Lexis 612 at pp.*27–*30].)

       Sexton's additional argument also fails to persuade. The second sentence of

CALCRIM No. 850 informs the jury that "[The expert's] testimony about intimate partner

battering is not evidence that the defendant committed any of the crimes charged against

him." Following the introductory sentence, this is the first direction provided to the jury.

                                              14
The instruction is thus structured to emphasize that above all else, the expert testimony

does not constitute evidence of guilt on any of the charges. Sexton argues that it implies

the inversion of its final phrase, that the testimony is evidence that Sexton committed any

crimes of which he was not charged.

       But we reject the suggestion that any reasonable juror would read the instruction

in this manner. The importance of avoiding the implication that the expert testimony

constitutes evidence of guilt is a good reason for the structure of the instruction as given.

Moreover, there is no logical reason for any juror to believe the expert's testimony would

be evidence the defendant committed the uncharged crimes but not the charged crimes.

We therefore find the trial court did not err in giving CALCRIM No. 850 and

furthermore, that given the evidence before the jury, any error was harmless under either

the standard for federal constitutional errors (Chapman v. California (1967) 386 U.S. 18,

24) or those of only state law (People v. Watson (1956) 46 Cal.2d 818, 836).

       Sexton's argument makes one more point worth mentioning. It would be

theoretically possible to provide much more information in the instruction, even in the

sentence challenged here. But the text of the sentence—and its prime placement in the

context of the entire instruction—effectively expresses that the most important thing

about the expert testimony is that it is not part of the evidence that the jury should

consider when it evaluates the charges against the defendant. Sexton is free to argue both

sides of this coin—that the instruction provides too much information, so the jury might

be confused by a broad-sounding phrase shorn of context; and that it provides too little

information, so the jury won't know what to do with it. But we recognize that a jury

                                             15
instruction is a balance of clarity and depth, economy and precision, and we evaluate

claims of instructional error with that in mind.

B.     Because Arizona's Robbery Statute Does Not Contain All the Elements of
       California's, the True Finding on the Arizona Prior Conviction Must Be Reversed
       and the Five-Year Serious Felony Enhancement Stricken.

       Sexton was sentenced to a five-year term for the prior serious felony enhancement

related to conviction for robbery in Arizona. The prosecution relied on a 1997

Information from Maricopa County, Arizona, charging Sexton with one count of robbery,

as well as minutes from the trial court showing that he pleaded guilty to "robbery, a class

4 felony, nondangerous and nonrepetitive offense in violation of [Arizona Annotated

Revised Statute, code sections] 13–1901, [13–1902, 13–701, 13–702, and 13–801]

committed on April 8, 1997." For a prior felony conviction from another jurisdiction,

such as Arizona, to support a prior serious felony enhancement, the crime must "include[]

all the elements of any serious felony" in California. (§ 667, subd. (a)(1).) At the

bifurcated trial on the priors, the prosecution described Arizona's robbery statute as

"almost identical to the California statute," and the court noted that "it does contain all of

the elements that are contained in the California Penal Code section for robbery, violation

of Penal Code section 211."

       Sexton argues that there are two ways in which Arizona's robbery statute fails to

contain all the elements of California's: (1) it does not require asportation, and (2) it does

not require that the person dispossessed of the property be the same person who

experienced the force or fear element. On the first point, the People maintain that an

opinion from the Court of Appeals of Arizona on which Sexton relies was wrongly

                                              16
decided and inaccurately describes the elements of Arizona's robbery statute. On the

second, they challenge Sexton's claim that California's robbery statute does not require

the victim of the felonious taking be the same person subjected to the force or fear

element.

       In California, robbery is "the felonious taking of personal property in the

possession of another, from his person or immediate presence, and against his will,

accomplished by means of force or fear." (§ 211.) The " 'taking' " element consists of

"(1) achieving possession of the property, known as 'caption,' and (2) carrying the

property away, or 'asportation.' " (People v. Gomez (2008) 43 Cal.4th 249, 254–255.)

Asportation is thus an element of robbery in California. (See People v. Lopez (2003)

31 Cal.4th 1051, 1054.)

       In Arizona, the "taking" element of its robbery statute requires "obtaining

possession of or dominion over property, and does not require that the property be

moved." 4 (State v. Aro (Ct.App. 1997) 188 Ariz. 521, 524 (Aro).) In Aro, the court held

that despite the express absence of asportation of the stolen property in the facts before

it—the defendant removed an individual from a vehicle, took possession of the vehicle,

but did not move it—the defendant was guilty of robbery. (Id. at pp. 522–524.) The

People concede, as they must, that Aro stands for such a proposition, but still ask us to


4      "A person commits robbery if in the course of taking any property of another
from his person or immediate presence and against his will, such person threatens or
uses force against any person with intent either to coerce surrender of property or to
prevent resistance to such person taking or retaining property." (Ariz. Rev. Stats.,
§ 13-1902(A).)

                                             17
second-guess that court's statutory interpretation analysis without pointing to any caselaw

from any Arizona court expressing a contrary opinion or otherwise questioning its

decision. We decline to do so.

       The People further argue that this issue was conclusively resolved against Sexton

in People v. Mumm (2002) 98 Cal.App.4th 812. But that case examined the intent

requirements of the California and Arizona robbery statutes, and the opinion did not

discuss asportation or Aro. (Id. at pp. 814–819; see, e.g., In re Chavez (2003) 30 Cal.4th

643, 656 [cases are not authority for propositions not considered and decided].)

Accordingly, in light of the clear guidance provided by Aro, supra, 188 Ariz. 521, we

direct that the enhancement be stricken. 5

C.     The Consecutive Sentences for Counts 3 and 4 Violate the Dual Punishment Ban.

       The dual punishment ban codified in section 654 provides that "[a]n 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 omission be punished under more than one

provision." The purpose of the ban is to improve the congruity between punishment and

culpability. (See People v. Sanders (2012) 55 Cal.4th 731, 742; People v. Jones (2012)

54 Cal.4th 350, 367.) Where there is separate punishment for multiple offenses arising

out of a single course of conduct, we review whether substantial evidence supports a trial



5    In light of our conclusion, we find it unnecessary to address Sexton's additional
arguments with regard to the enhancement.

                                             18
court's finding that the defendant formed a separate intent and objective for each crime.

(See People v. Capistrano (2014) 59 Cal.4th 830, 886.)

       In closing arguments, the prosecutor presented both count 3 and count 4 as relating

to one action—Sexton's choking of Jane—which resulted in a visible injury to her neck. 6

The information charging Sexton, the trial court's nonspecific discussion of the counts,

and the verdict forms were all consistent with this line of argument. Sexton did not

previously challenge these two counts on section 654 grounds but raises the issue on

appeal, as he is entitled to do. (See People v. Hester (2000) 22 Cal.4th 290, 295.)

       In response, the People contend that substantial evidence supports an implied

finding by the trial court that the two counts related to divisible acts, claiming that count

4 corresponded to hair-pulling during the incident, rather than choking. They further

divide Sexton's intent, arguing that the purpose of the hair-pulling was to prevent her




6       Count 3, inflicting an injury on a spouse, required the jury find that appellant
willfully inflicted injury upon his spouse, and the injury resulted in a traumatic condition.
        Count 4, assault with force likely to cause great bodily injury, required the jury
find that appellant willfully committed an act likely to result in force that could produce
great bodily injury, that when appellant acted he was aware that his act would likely
result in the application of force, and that appellant had the ability to apply force likely to
produce great bodily injury.

                                              19
escape or protect the children, rather than to inflict physical pain, the objective of his

choking. 7

       Jane described the conduct as follows:

             "[Sexton] started yelling at me that 'I told you not to come home.'
             He—grabbed me by my throat, and he started to choke me. . . .
             [¶] . . . [¶]

             "I was trying to pull his hands from my throat, and I managed to get
             his hands loose . . . . He was threatening me that I was going to die
             . . . and he was going to kill me." [¶] . . . [¶]

             "The kids ran out of the room. They were scared. They ran into my
             daughter's bedroom. I tried to run after them. He grabbed me by my
             hair, pulled me back, put his left arm around my throat. At this
             point, my back was facing him, his left arm around my throat, and
             [he] continued to choke and continued to threaten that he was going
             to kill me."

       Apart from the passage quoted above, the People point to no evidence in the

record that would support a finding that Sexton had a separate intent and objective for the

two counts at issue. The testimony demonstrates that during the entire course of conduct,

Sexton was threatening and choking Jane, except for a brief period when she managed to

get his hands loose, after which he pulled her back to him and "continued to choke and

continued to threaten" her.




7      Because we conclude substantial evidence would not support a finding of a
separate intent and objective, we need not address whether the prosecutor could argue to
the jury that both counts were based on choking Jane, yet contend on appeal that separate
punishment was permissible because count 4 could be based on hair pulling. (See People
v. Jones (2012) 54 Cal.4th 350, 359 [record established that jury convicted defendant of
three crimes based on a single act].)
                                               20
        The People offer two possible implied findings they believe are supported by

substantial evidence. Under either of these scenarios, they connect the choking to count

3, given that this count requires a traumatic condition to result, which would be satisfied

by the bruising on Jane's neck. (See People v. Beasley (2003) 105 Cal.App.4th 1078,

1085.) Count 4, then, would necessarily relate to the hair-pulling. According to the

People, two separate objectives for the hair-pulling are possible. Sexton might have

taken this action to prevent Jane "from reaching the safety of her children" or "to prevent

the children from witnessing the gravity of the acts."

        First, the hair-pulling may or may not be a plausible basis for count 4 depending

on, among other elements, the level of harm likely to be produced by such an act.

Certainly the prosecutor never told the jury it was required to assess the likelihood that

the hair pulling would produce great bodily injury in order to convict on this count. But

even assuming it is, the People provide no cogent explanation for how their proposed

objectives for the hair pulling were independent of, and not merely incidental to, the

plainly-principal objective of harming Jane. (See People v. Beamon (1973) 8 Cal.3d 625,

639.)

        If one's intent is to inflict harm on an individual who manages to free themself,

then a subsidiary goal of the infliction of harm is to regain control of the individual. In

such a case, however, the overarching objective throughout remains inflicting harm on

the victim, and any subsidiary objectives—such as regaining physical control or shielding

the harm from one's children—necessarily depend on the overarching objective and are

therefore not independent. As Jane testified, after Sexton regained control he "continued

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to choke and continued to threaten." Even Jane's verb choices thus tend to show that his

harm-infliction objective was continuous. Substantial evidence therefore does not

support an implied finding that any of Sexton's actions during the physical altercation

were taken for a purpose other than his principal purpose, the infliction of physical and

emotional harm on Jane.

D.     Remand for Reconsideration of the Prior Serious Felony Enhancement Under
       Senate Bill No. 1393

       Sexton was sentenced to consecutive five-year terms for each of the two section

667, subdivision (a)(1) serious felony prior conviction allegations. As discussed above,

we agree with Sexton that the serious felony prior conviction enhancement related to the

allegation of robbery in Arizona be struck. We further agree with both parties that Senate

Bill No. 1393, signed into law in 2018, now provides the trial court with the discretion to

strike the second serious felony prior enhancement, which it may or may not choose to

exercise on remand. (Stats. 2018, ch. 1013, §§ 1–2.) As the People note, Senate Bill

No. 1393 applies retroactively to Sexton's conviction given the lack of finality. (See

People v. Garcia (2018) 28 Cal.App.5th 961, 973–975; see also In re Estrada (1965) 63

Cal.2d 740, 743.)




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                                      DISPOSITION

       The judgment is reversed in part with directions to strike the prior serious felony

enhancement relating to the Arizona robbery allegation, strike the true finding relating to

the Arizona robbery as a strike and a serious felony enhancement, reconsider the sentence

for the remaining prior serious felony enhancement in light of Senate Bill No. 1393, stay

the sentence on either count 3 or count 4, and resentence as to all counts. (See People v.

Buycks (2018) 5 Cal.5th 857, 893.) In all other respects, the judgment is affirmed.




                                                                                  DATO, J.

WE CONCUR:



McCONNELL, P. J.



AARON, J.




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