Filed 6/27/16 P. v. Davis CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140743
v.
JOHN CARLISLE DAVIS,                                                 (Solano County
                                                                     Super. Ct. No. FCR280477)
         Defendant and Appellant.


         At issue in this case is the application of the “two-dismissal” rule of Penal Code1
section 1387, which generally bars further prosecution on a felony offense if the same
offense has twice previously been terminated according to the provisions of the statute.
         Defendant John Carlisle Davis was found guilty by a jury of assault with a firearm
(§ 245, subd. (a)(2)) and battery with serious bodily injury (§ 243, subd. (d)). The jury
also found true enhancement allegations of inflicting great bodily injury (§ 12022.7,
subd. (a)) and personal use of a firearm (§ 12022.5, subd. (a)). He was sentenced to a
total term of 10 years in state prison, including a four-year enhancement for personal use
of a firearm (§ 12022.5, subd. (a)).
         Defendant now contends his prosecution on the firearm enhancement for count 1
was barred under the two-dismissal rule and, as a result, the firearm enhancement must be




         1
             Further statutory references are to the Penal Code.


                                                             1
stricken.2 He separately argues he is entitled to remand for resentencing because the trial
court was mistaken about his eligibility for probation.
       In any event, the parties agree the abstract of judgment should be corrected to
delete reference to section 1203.06, subdivision (a)(1). We agree with the parties on this
issue, and will remand to the trial court to prepare a corrected abstract of judgment. In all
other respects, we affirm.
                                          FACTS
       Shortly after 10:30 p.m. on March 7, 2010, defendant arrived at Harry’s
Sportsman’s Bar in Fairfield. He was wearing three knives on his belt. Around 1:00
a.m., Joseph Pile arrived at Harry’s.3 Defendant and Pile began talking at the bar. At
first their conversation appeared to be friendly, but it became confrontational. They
stepped outside. Defendant made a derogatory comment about Pile’s sweatshirt. He
pulled out his knives and said, “I’ll cut you with them.” Pile told defendant to calm
down. At some point, defendant went to his truck, which was parked in front of the bar.
He rolled down the passenger’s side window. Holding a gun in his hand, defendant said,
“I’m going to shoot you.” Pile saw a flash and heard loud pop. Defendant had shot Pile
in the upper left thigh.
                               PROCEDURAL HISTORY
Case No. 274650
       On March 16, 2010, the Solano County District Attorney filed a felony complaint
against defendant in case No. 274650. Defendant was charged with a single count of
assault with a firearm. It was further alleged that defendant personally inflicted great
bodily injury upon Pile under section 12022.7, subdivision (a). A preliminary hearing



       2
        For the sake of brevity, we sometimes refer to the allegation that defendant
personally used a firearm in the commission of an offense under section 12022.5,
subdivision (a), as the “firearm enhancement.”
       3
        Pile had already drunk about six 24-ounce beers at home, and his memory of the
night was spotty.


                                              2
was held on August 16, 2010, and defendant was held to answer. On November 2, 2010,
the case was dismissed on a motion by the district attorney.
Case No. 280477
       On November 3, 2010, a felony complaint was filed in case No. 280477, the case
underlying this appeal. Defendant was charged with assault with a firearm (count 1;
§ 245, subd. (a)(2)) and battery with serious bodily injury (count 2; § 243, subd. (d)). As
to both counts, it was alleged defendant personally inflicted great bodily injury upon Pile
(§ 12022.7, subd. (a)), and defendant personally used a firearm in the commission of the
offense (§ 12022.5, subd. (a)).
       On November 5, 2010, defendant pleaded not guilty to all counts. The preliminary
hearing was scheduled for November 22, 2010.
       At a hearing on November 18, 2010, an attorney who did not represent defendant
appeared specially for defense counsel and requested a continuance for the preliminary
hearing because defense counsel was in trial in another department for two weeks.
However, defendant also stated during the hearing, “Today is supposed to be my
preliminary hearing; the ten-day rule.” The trial court explained to defendant that the
tenth court day was Monday, November 22, the day the preliminary hearing was
currently scheduled. The court then found good cause to vacate the preliminary hearing
date based upon the unavailability of defendant’s counsel. The preliminary hearing was
reset for December 6, 2010.
       On December 6, 2010, defense counsel expressed a doubt as to defendant’s
competence and asked the court to suspend the proceedings pursuant to section 1368.
Defendant protested that he “just had a psych evaluation nine months ago.” He also told
the court he wanted to move “to dismiss on a 859(b).” The trial court explained to
defendant that he was represented by counsel, so he should submit his motion to his own
attorney. The court then suspended the criminal proceedings and appointed two mental
health professionals to evaluate defendant.




                                              3
       Defendant filed a notice of appeal, attempting to appeal the denial of his motion to
dismiss under section 859b. On February 2, 2011, this court dismissed the appeal
because the challenged ruling was not immediately appealable.
       On September 7, 2011, the criminal proceedings were reinstated.4 On November
23, 2011, a preliminary hearing was conducted. Defendant was held to answer on all
counts and enhancements.
       On November 29, 2011, the district attorney filed an information alleging assault
with a firearm (count 1; § 245, subd. (a)(2)) and battery with seriously bodily injury
(count 2; § 243, subd. (d)). As to count 1, it was alleged defendant personally inflicted
great bodily injury upon Pile (§ 12022.7, subd. (a)); as to count 2, it was alleged
defendant personally used a firearm in the commission of the offense (§ 12022.5, subd.
(a)). On May 25, 2012, the district attorney filed a motion to amend the information,
which the trial court granted June 8, 2012, without objection by defendant. The amended
information added the firearm enhancement to count 1.
       The case went to trial in October 2013. The jury found defendant guilty of both
counts and found all the enhancement allegations true.
       Defendant was sentenced to the middle term of three years for count 1, three years
for inflicting great bodily injury (§ 12022.7, subd. (a)), and four years for personal use of
a firearm (§ 12022.5, subd. (a)), for a total term of 10 years in state prison. The sentence
for count 2 was stayed under section 654.
                                       DISCUSSION
A.     The Two-Dismissal Rule
       Section 1387 “sets forth what is sometimes referred to as the ‘two-dismissal rule’:
Two dismissals of a felony action bars further prosecution, except in certain specified
circumstances.”5 (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 739.) However,

       4
        The minute order indicates defense counsel withdrew his request for a
determination of defendant’s competence, and the trial court “voir dire[d] defendant.”
       5
        Section 1387, subdivision (a), provides in part, “An order terminating an action
pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other

                                              4
“[s]ection 1387.1 carves out an exception to the two-dismissal rule when the action
involves a ‘violent felony,’ as defined in section 667.5. Under section 1387.1, a third
filing is permitted where (1) either of the prior dismissals was ‘due solely to excusable
neglect,’[6] and (2) the conduct of the prosecution did not ‘amount[] to bad faith.’ ”
(Miller v. Superior Court, supra, at p. 739, italics added.) The firearm enhancement of
section 12022.5 qualifies as a violent felony subject to section 1387.1. (See People v.
Villanueva (2011) 196 Cal.App.4th 411, 425 [firearm enhancement allegations under
section 12022.53 are subject to section 1387.1]; § 667.5, subd. (c)(8) [“ ‘violent felony’ ”
includes any felony in which the defendant uses a firearm as provided in section 12022.5,
subdivision (a)].)
       In this case, there is no dispute that one dismissal occurred when Case No. 274650
was dismissed. Defendant argues there were two subsequent events in Case No. 280477
that should be deemed “implied dismissals” for purposes of the two-dismissal rule. First,
he claims there was an implied dismissal of the entire criminal complaint—including the
firearm enhancement—on December 6, 2010, when the trial court “erred” in failing to
dismiss the complaint under section 859b. Second, he claims “there was an implied
dismissal of the [firearm] enhancement when it was omitted from the November 2011
information in Case No. 0477.” Defendant argues the firearm enhancement was thus
effectively dismissed three times, so prosecution on the firearm enhancement was barred

prosecution for the same offense if it is a felony . . . and the action has been previously
terminated pursuant to this chapter, or Section 859b, 861, 871, or 995,” except “where
subsequent to the dismissal of the felony . . . the judge or magistrate finds any of the
following: [¶] (1) That substantial new evidence has been discovered by the prosecution
which would not have been known through the exercise of due diligence at, or prior to,
the time of termination of the action. [¶] (2) That the termination of the action was the
result of the direct intimidation of a material witness, as shown by a preponderance of the
evidence. [¶] (3) That the termination of the action was the result of the failure to appear
by the complaining witness, who had been personally subpoenaed . . . . [¶] (4) That the
termination of the action was the result of the complaining witness being found in
contempt of court . . . .”
       6
         “ ‘Excusable neglect’ ” “includes, but is not limited to, error on the part of the
court, prosecution, law enforcement agency, or witnesses.” (§ 1387.1, subd. (b).)


                                              5
under the two-dismissal rule, even taking into consideration section 1387.1’s exception
for violent felonies.
       As we will explain, defendant’s first claim of implied dismissal fails on the merits,
and his second claim of implied dismissal is forfeited. Accordingly, we reject
defendant’s contention that prosecution on the firearm enhancement was barred under the
two-dismissal rule.
       1.     Failing to Dismiss the Complaint on December 6, 2010
       Defendant contends the trial court erred in failing to grant his December 6, 2010,
request to dismiss the complaint based on alleged violation of section 859b. He does not
seek reversal of his convictions based on this alleged error; his intent is to establish an
implied dismissal for purposes of the two-dismissal rule. We conclude the trial court did
not err.
       Section 859b provides in relevant part:
       “Both the defendant and the people have the right to a preliminary
examination at the earliest possible time, and unless both waive that right or good
cause for a continuance is found as provided for in Section 1050, the preliminary
examination shall be held within 10 court days of the date the defendant is
arraigned or pleads, whichever occurs later, or within 10 court days of the date
criminal proceedings are reinstated pursuant to Chapter 6 (commencing with
Section 1367) of Title 10 of Part 2.
       “Whenever the defendant is in custody, the magistrate shall dismiss the
complaint if the preliminary examination is set or continued beyond 10 court days
from the time of the arraignment, plea, or reinstatement of criminal proceedings
pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2, and
the defendant has remained in custody for 10 or more court days solely on that
complaint, unless either of the following occur: [¶] (a) The defendant personally
waives his or her right to preliminary examination within the 10 court days.
[¶] (b) The prosecution establishes good cause for a continuance beyond the 10-
court-day period.”


                                              6
       Defendant does not claim the trial court erred in granting defense counsel’s
request for a continuance of the preliminary hearing to December 6, 2010. Instead,
defendant argues, “[T]he preliminary hearing should have occurred on December 6,
2010,” and “[w]hen it did not, section 859b’s 10-day rule was violated.” (Italics added.)
       This argument lacks merit. On December 6, 2010, defense counsel declared a
doubt as to defendant’s competence to stand trial. In response, the trial court properly
suspended the criminal proceedings that day to allow a determination of defendant’s
competence pursuant to section 1367 et seq. Section 859b contemplates that criminal
proceedings may be suspended in order to determine whether a defendant is competent to
stand trial. In such cases, the clock stops and is reset once the criminal proceedings are
reinstated. (§ 859b [the preliminary examination must be held “within 10 court days of
the date criminal proceedings are reinstated pursuant to Chapter 6 (commencing with
Section 1367) of Title 10 of Part 2”].) Thus, contrary to defendant’s argument, there was
no violation of section 859b’s 10-day rule. Once the criminal proceedings were
suspended pursuant to section 1368, defendant did not have a right to preliminary
examination on December 6, 2010, under section 859b; he had a right to a preliminary
examination within 10 court days of the subsequent reinstatement of the criminal
proceedings.
       Moreover, when the speedy trial rights of section 859b conflict with a
constitutional right, the constitutional right prevails. (People v. Kowalski (1987) 196
Cal.App.3d 174, 179 [“when a defendant asserts both his right to a preliminary hearing
within 10 days and his right to counsel, the constitutional right must prevail”]; Curry v.
Superior Court (1977) 75 Cal.App.3d 221, 226 [“section 859b must . . . be subordinated
to the constitutional right of self-representation”].) The criminal trial of an incompetent
defendant is prohibited as a matter of due process under the federal and state
constitutions. (Drope v. Missouri (1975) 420 U.S. 162, 171–172; Timothy J. v. Superior
Court (2007) 150 Cal.App.4th 847, 857.) “[F]ailure to employ procedures to protect
against the trial of an incompetent defendant is a deprivation of due process.” (Timothy
J. v. Superior Court, supra, at p. 857.) To the extent defendant’s rights under section


                                             7
859b were in conflict with his constitutional right not to be tried while incompetent, the
constitutional right prevailed. For these reasons, we reject defendant’s claim that the trial
court should have dismissed the case on December 6, 2010, under section 859b.
       2.     Omission of the Firearm Enhancement in the November 2011 Information
       Section 1382 provides, among other things, “unless good cause to the contrary is
shown, [the trial court] shall order the action to be dismissed” “[w]hen a person has been
held to answer for a public offense and an information is not filed against that person
within 15 days.” (§ 1382, subd. (a)(1).) Defendant argues the firearm enhancement
should be deemed dismissed because it was omitted from the timely-filed information.
Again, defendant’s argument is intended to establish an implied dismissal for purposes of
the two-dismissal rule. This argument fails because it is forfeited.
       As noted, the firearm enhancement was not included in the information filed
within 15 days of the order holding defendant to answer. “However, notwithstanding this
mandatory language, courts do not have a sua sponte duty to dismiss an action” under
section 1382. (People v. Williams (1999) 77 Cal.App.4th 436, 460.) Our Supreme Court
has observed, “The right to a speedy trial must. . .be asserted, if at all, in the court where
the prosecution is pending, and prior to the commencement of trial. [Citation.] It is too
late to raise the point for the first time on appeal.” (People v. Wilson (1963) 60 Cal.2d
139, 146.)
       Here, as the Attorney General observes, defendant certainly could have moved to
dismiss the firearm enhancement after the information was amended to include it, but he
did not. To the contrary, when asked by the trial court whether he objected to the
amendment, defense counsel responded that he did not. Consequently, defendant has
forfeited his claim that the firearm enhancement should have been dismissed on the
ground it was not alleged in the November 2011 information.
       Defendant responds, if he forfeited this claim, then the failure of defense counsel
to move to dismiss the firearm enhancement deprived him of effective assistance of
counsel. However, even if we assume for the sake of argument that defense counsel
could have successfully moved to dismiss the firearm enhancement, there was no harm


                                               8
from defense counsel’s failure to seek dismissal because the prosecution, in turn, could
have refiled the firearm enhancement under section 1387.1. (People v. Lomax (2010) 49
Cal.4th 530, 557 [“charges could have been refiled under section 1387.1 because there is
no evidence of bad faith or inexcusable neglect by the prosecution” (italics added)].)
       Defendant asserts section 1387.1 would not apply in this case because there was
“no showing of any acceptable reason to excuse the neglect.” But it is defendant’s
burden to affirmatively prove prejudice from alleged ineffective assistance of counsel.
(People v. Snyder (2003) 112 Cal.App.4th 1200, 1223.) We will not presume prejudice.
This means defendant must affirmatively prove that, had defense counsel obtained a
dismissal of the firearm enhancement, any attempt by the prosecution to refile the firearm
enhancement under section 1387.1 would have failed. In other words, defendant must
show, based on the record, either: (1) the dismissal of case No. 274650 was not due
solely to excusable neglect, and the omission of the firearm enhancement from the
November 2011 information was not due solely to excusable neglect, or (2) the
prosecution’s conduct amounted to bad faith. Defendant has failed to make this showing.
Because he cannot demonstrate prejudice, defendant cannot establish ineffective
assistance of counsel.7




       7
         In support of his argument, defendant cites In re Williams (1985) 164 Cal.App.3d
979, 983, in which the court held, “defense counsel should have moved to dismiss,
pursuant to section 1387, and . . . failure to do so deprived petitioner of effective
assistance of counsel.” Williams does not help defendant because, even assuming
defense counsel in the instant case should have moved to dismiss the firearm
enhancement, we discern no prejudice from counsel’s failure to do so. In Williams, a
burglary charge was twice dismissed for insufficient evidence. (Id. at pp. 981–982.) The
Williams court did not address whether section 1387.1 could have applied to allow the
prosecution to file the burglary charge a third time. “An appellate decision is not
authority for everything said in the court’s opinion but only ‘for the points actually
involved and actually decided.’ ” (Santisas v. Goodin (1998) 17 Cal.4th 599, 620.) The
burglary charges in Williams may not have been violent felonies subject to section
1387.1, and, in any event, the record in Williams demonstrates the case was twice
dismissed for failure of proof by the prosecution, not excusable neglect.


                                             9
B.     Denial of Probation
       Defendant next argues this case must be remanded for resentencing because the
trial court was fundamentally mistaken about his eligibility for probation. He contends
the trial court incorrectly believed he was presumptively ineligible for probation under
section 1203, subdivision (e)(3).8 We find no error.
       1.     Background
       In the amended information, it was alleged that, “pursuant to . . . section 1203.095,
there is a presumptive minimal jail time required if you are convicted of this charge.”9
Section 1203, subdivision (e) was not mentioned in the amended information.
       In her presentence report, the probation officer wrote that defendant was
statutorily ineligible for probation pursuant to section 1203(e)(3), unless unusual
circumstances were found to exist.
       In his sentencing memorandum, defendant conceded, “The convictions and
enhancements in this case appear to fall within the ‘restricted’ probation eligibility
provisions of PC 1203(e).” He elaborated, “The two main PC 1203(e) aspects . . . are the
use of a dangerous weapon [§ 1203, subd. (e)(2)10] and the infliction of great bodily

       8
         Under section 1203, subdivision (e), “probation shall not be granted” to certain
described persons “[e]xcept in unusual cases where the interests of justice would best be
served if the person is granted probation.” Section 1203, subdivision (e)(3) (hereafter
section 1203(e)(3)), provides that the presumption against probation applies to “[a]ny
person who willfully inflicted great bodily injury or torture in the perpetuation of the
crime of which he or she has been convicted.”
       9
        Section 1203.095, subdivision (a) provides that, if a person who has been
convicted of assault with a deadly weapon under section 245, subdivision (a)(2), “is
granted probation or the execution or imposition of sentence is suspended, it shall be a
condition thereof that he or she be imprisoned for at least six months,” except in unusual
cases.
       10
          “Any person who used, or attempted to use, a deadly weapon upon a human
being in connection with the perpetration of the crime of which he or she has been
convicted” is subject to the statutory presumption against probation. (§ 1203, subd. (e)(2)
(hereafter § 1203(e)(2)).) Although defendant used the phrase “dangerous weapon”
rather than “deadly weapon,” it is obvious in context that he was referring to section
1203(e)(2).


                                             10
injury [§ 1203(e)(3)].” Defendant argued that consideration of the facts of the case
justified a grant of probation in spite of the statutory probation limitation.
       At the sentencing hearing, the trial court understood that section 1203(e)(2)
applied in defendant’s case. Defendant submitted an email exchange between defense
counsel and the probation officer, in which the probation officer referred to California
Rules of Court, rule 4.413(c)(1)(B). Defense counsel told the court he believed the
probation officer meant to refer to rule 4.413(c)(1)(A).11 The court stated: “So the facts
and circumstances giving rise to the limitation that is the use of the firearm, are
substantially less serious than those typically present in other cases involving the same
limitation, and there’s no recent record of committing similar crimes or crimes of
violence[?]” (Italics added.) Defense counsel responded, “Right.” After hearing
argument, the trial court denied probation, explaining, “I’m not going to find unusual
case circumstances or unusual circumstances as far as he is concerned.”
       2.     Analysis
       Defendant claims the trial court did not have an accurate understanding of its
sentencing options when it decided his sentence. He observes that the probation report
cited section 1203(e)(3) as the basis for the presumption against probation, but this
provision requires a finding the defendant acted “willfully,” meaning with “intent to
cause great bodily injury or torture.” (People v. Lewis (2004) 120 Cal.App.4th 837, 853.)
Here, although defendant was found to have inflicted great bodily injury, neither the jury
nor the trial court necessarily found that defendant intended to cause such injury. (See id.




       11
          “The following facts may indicate the existence of an unusual case in which
probation may be granted if otherwise appropriate: [¶] (1) . . . [¶] A fact or circumstance
indicating that the basis for the statutory limitation on probation, although technically
present, is not fully applicable to the case, including: (A) The fact or circumstance giving
rise to the limitation on probation is, in this case, substantially less serious than the
circumstances typically present in other cases involving the same probation limitation,
and the defendant has no recent record of committing similar crimes or crimes of
violence.” (Cal. Rules of Court, rule 4.413 (c)(1)(A).)


                                              11
at p. 854 [“the trial court may make the factual determination necessary for application
of” section 1203(e)(3)].)12
       This claim fails because the record discloses the trial court knew that defendant
was presumptively ineligible for probation under a different provision, that is, section
1203(e)(2). In his reply brief, defendant does not dispute that section 1203(e)(2) applies
in this case.
       Defendant argues instead that the Attorney General should be estopped from
invoking section 1203(e)(2) “for the first time on appeal.” He claims section 1203(e)(2)
was never referred to at sentencing. We disagree. Defendant himself wrote in his
sentencing memorandum that two provisions of section 1203, subdivision (e) applied—
“the use of a dangerous weapon and the infliction of great bodily injury.” Defendant was
clearly referring to section 1203(e)(2), use of “a deadly weapon upon a human being in
connection with the perpetuation of the crime,” and section 1203(e)(3), “willfully
inflicting great bodily injury or torture,” respectively. At sentencing, the trial court
referred to the statutory limitation on probation for “the use of the firearm.” Given the
context, it is obvious the court also was referring to section 1203(e)(2).
       In any event, judicial estoppel would not apply in this circumstance because the
prosecution never took a position incompatible with the application of section 1203(e)(2).
The prosecution never argued that section 1203(e)(2) did not apply in defendant’s case.
The allegation in the amended information that section 1203.095 applied did not preclude
the possibility that additional statutory sentencing presumptions might also apply. We do
not consider defendant’s argument, raised for the first time in his reply brief, that section


       12
          To the extent defendant argues a statutory presumption of probation ineligibility
under section 1203, subdivision (e) must be pleaded in the information in order to apply
at sentencing, we reject the argument. (People v. Dorsch (1992) 3 Cal.App.4th 1346,
1351 [sentencing facts, including whether section 1203, subdivision (e)(4) applied “are
not findings that must be pleaded and proved to the trier of fact.”]; People v. Lewis,
supra, 120 Cal.App.4th at p. 854 [rejecting claim that the jury was required to make a
finding on the question whether defendant intentionally inflicted great bodily injury
within the meaning of section 1203(e)(3)].)


                                              12
1203.095 “trumps” section 1203(e)(2). (People v. Tully (2012) 54 Cal.4th 952, 1075 [“It
is axiomatic that arguments made for the first time in a reply brief will not be entertained
because of the unfairness to the other party.”].)
       In sum, defendant has not shown the trial court was fundamentally mistaken about
his eligibility for probation.
C.     Abstract of Judgment
       The abstract of judgment lists section 1203.06, subdivision (a)(1) as an
enhancement to count 2. This provision bars probation for persons who personally used a
firearm in the commission of enumerated crimes. We agree with the parties that this
provision does not apply because defendant was not convicted of any of the crimes
enumerated in subdivision (a)(1) of section 1203.06. Accordingly, we direct the trial
court to correct the abstract of judgment to delete any reference to section 1203.06,
subdivision (a)(1).
                                      DISPOSITION
       The judgment is affirmed. The matter is remanded to the trial court with
instructions to prepare a new abstract of judgment deleting mention of section 1203.06,
subdivision (a)(1).




                                             13
                                 _________________________
                                 Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.




                            14
