Filed 8/17/20 P. v. Covington CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT


    THE PEOPLE,
                                                                                             F078549
           Plaintiff and Respondent,
                                                                                   (Super. Ct. No. 15472)
                    v.

    AARON ROBERT COVINGTON,                                                               OPINION
           Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Mariposa County. F. Dana
Walton, Judge.
         Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



*        Before Franson, Acting P.J., Smith, J. and Snauffer, J.
                                   INTRODUCTION
      Appellant Aaron Robert Covington was found guilty of dissuading a witness, a
wobbler offense. The trial court declared the offense a felony but imposed a
misdemeanor sentence. Covington appealed and filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436. The People appealed, challenging the imposition of a
misdemeanor sentence for a felony conviction as an abuse of discretion. We remand for
resentencing.
                   FACTUAL AND PROCEDURAL SUMMARY
      Covington’s mother testified she lived in a mobile home in Mariposa County. On
December 24, 2016, she went to work near Yosemite and stayed several days, returning
on December 28. Upon her return home, she found two of her TiVo’s were missing, the
frame to her bedroom door had been removed, and the contents of several boxes had been
disturbed.
      Later in the day on December 28, Covington entered the mobile home uninvited.
Mother asked Covington where her TiVo’s were, and he told her he threw them away.
Covington saw mother looking at her cell phone, grabbed the phone, and removed the
battery. Covington demanded mother give him $2,000, claiming people were trying to
kill him. Mother refused and Covington pushed her.
      When Covington went into the bedroom, mother plugged in her cell phone and
dialed 911. Mother hoped the call would go through and the operator would hear the
commotion. She left the phone in the living room and went to the bedroom.
      Covington went through mother’s purse and took all the cash and what he thought
was a debit card. When he demanded the PIN from mother, she told him she only used
the card to enter the bank. He slapped her.
      Covington left the bedroom and returned to the living room. He saw the cell
phone, grabbed it and broke it in half. Covington then left through the back door.

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       Mother walked out the front door to find help. Covington appeared and demanded
the keys to her car. When she refused, Covington dragged her down the front steps and
then tried to drag her back into the mobile home. Covington eventually gave up and ran
off. Mother went to a neighbor’s and the neighbor called law enforcement.
       Law enforcement investigated Covington’s Facebook postings and found that
two days before he confronted his mother, he posted about “going to strong-arm my
mother to force her into paying me money.” He also posted that he was “going over there
when she’s home and I’m going to beat it out of her.”
       Covington denied demanding money from his mother or taking the debit card. He
also denied dragging her down the stairs. He claimed he was merely being sarcastic in
his Facebook postings.
       Covington was charged with two counts of residential burglary, one count of
robbery, one count of dissuading a witness by force or threat, and one count of false
imprisonment by violence.
       The jury deadlocked on one burglary count and the trial court declared a mistrial
on that count. On the dissuading a witness by force or threat count, the jury found
Covington guilty of the lesser included offense of dissuading a witness. The jury found
Covington not guilty on the other counts.
       The probation report recommended probation be denied. The report noted that the
available prison terms for a felony violation of Penal Code1 section 136.1,
subdivision (b)(1), were 16 months, two years, or three years. The report also stated
Covington was entitled to 1,069 days of presentence credit, which exceeded the
maximum term of three years. The probation officer recommended Covington be




1      Further references to statutes are to the Penal Code.

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sentenced to a term of three years, awarded 1,069 days of presentence credit, and pay
various fines and fees.
       Covington filed a motion for new trial, noting his conviction was a wobbler. He
argued the conviction should be dismissed or reduced to a misdemeanor. Covington
claimed the conviction should not stand because mother was not the victim of any crime
because the jury deadlocked or acquitted on all the other charges.
       The People opposed the motion for new trial, noting that section 136.1,
subdivision (b)(1) does not require the underlying crime be independently proven at trial.
The trial court denied the motion.
       At sentencing, defense counsel argued a prison term would be inappropriate.
Defense counsel requested the conviction be deemed a misdemeanor and a “terminal
disposition” of 364 days was appropriate.
       The trial court denied probation. The trial court expressly found the offense to be
a felony and warned Covington he now had a “strike under the Three Strikes Law.”
Covington was sentenced to a term of “364 days in incarceration with credit for time
served.”
       Covington and the People both appealed.
                                     DISCUSSION
       Covington’s appellate counsel filed a brief pursuant to People v. Wende, supra,
Cal.3d 436, on March 1, 2019. That same day, this court issued its letter to Covington
inviting him to submit a supplemental brief. No supplemental brief was filed.
       The People’s appeal challenges the imposition of a misdemeanor sentence for a
felony conviction.
       We first note that the trial court did not err in denying Covington’s motion for new
trial because the People were not required to prove beyond a reasonable doubt an



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underlying crime that a witness was dissuaded from reporting or testifying regarding.
(See People v. Cribas (1991) 231 Cal.App.3d 596, 611 & fn.11.)
       After independently reviewing the record, we find no meritorious issues except for
the sentencing issue raised in the People’s appeal.
       Turning now to the People’s appeal, we agree the trial court abused its discretion
at sentencing. The trial court is presumed to have applied the correct statutory and case
law in performance of its duties. (People v. Jacobo (1991) 230 Cal.App.3d 1416, 1430.)
However, the record in this case indicates otherwise.
       Dissuading a witness under section 136.1, subdivision (b)(1), is a wobbler offense.
(People v. McElroy (2005) 126 Cal.App.4th 874, 880.) When the conviction for
dissuading a witness is a misdemeanor, the sentence may not exceed 364 days in county
jail. (§§ 17, subd. (b), 18.5.) For a felony conviction of dissuading a witness, the
sentencing triad is 16 months, two years, or three years. (§§ 18, 136.1, subd. (b)(1),
1170, subd. (h)(1).)
       A felony conviction for dissuading a witness is a serious felony under
section 1192.7, subdivision (c)(37). (People v. Neely (2004) 124 Cal.App.4th 1258,
1266–1268.) Consequently, a county jail term is not an available sentence. (§ 1170,
subd. (h)(3); People v. Scott (2014) 58 Cal.4th 1415, 1418.) The sentence for a felony
conviction of dissuading a witness “shall be served in the state prison.” (§ 1170,
subd. (h)(3); see also People v. Griffis (2013) 212 Cal.App.4th 956, 961–962.)
       A wobbler offense charged as a felony is regarded as a felony for all purposes
until imposition of sentence. If a misdemeanor sentence is imposed, the offense is
thereafter a misdemeanor. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1320.) If
ultimately a misdemeanor sentence is imposed pursuant to section 17, subdivision (b), the
offense is a misdemeanor for all purposes from that point forward. (People v. Feyrer



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(2010) 48 Cal.4th 426, 439 superseded on another ground in People v. Park (2013) 56
Cal.4th 782, 789 & fn. 4.)
        Here, the trial court expressly classified the conviction as a felony and told
Covington he would have a strike offense under the “Three Strikes” law going forward.
However, imposition of a 364-day misdemeanor sentence is inconsistent with that
express statement of intent by the trial court because the misdemeanor sentence alters the
nature of the conviction. Imposition of a sentence other than a term of imprisonment
denotes treatment of the offense as a misdemeanor. (People v. Park, supra, 56 Cal.4th at
pp. 791–793.)
        Although the trial court clearly understood it had the discretion to classify the
offense as a felony or misdemeanor, and classified it as a felony, it clearly misunderstood
the effect of imposing a misdemeanor sentence and that it lacked the ability to impose a
misdemeanor sentence for a felony offense. It is apparent that the trial court
misunderstood the law and therefore did not exercise informed discretion in imposing a
sentence. (People v. Downey (2000) 82 Cal.App.4th 899, 912.) The appropriate remedy
is to remand the matter for resentencing. (People v. Lee (2017) 16 Cal.App.5th 861, 874–
875.)
                                       DISPOSITION
        The sentence is vacated, and the judgment is affirmed in all other respects. The
matter is remanded for resentencing.




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