California Court of Appeal Dec 11, 2024 No. E082054Unpublished
Filed 12/11/24 P. v. Barnhill CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082054
v. (Super.Ct.No. BAF2300330)
HENRY MICHAEL BARNHILL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Rene Navarro, Judge.
Affirmed in part, vacated in part, reversed in part, and remanded with directions.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Junichi P.
Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Henry Michael Barnhill of one count of misdemeanor domestic
battery (Pen. Code, § 243, subd. (e)(1)) and one misdemeanor count of simple assault
(Pen. Code, § 240), arising out of two separate incidents involving his girlfriend.
(Unlabeled statutory references are to the Penal Code.) The jury also convicted Barnhill
Section 654 provides: “An act or omission that is punishable in different ways by
different provisions of law may be punished under either of such provisions, but in no
case shall the act or omission be punished under more than one provision.” (§ 654, subd.
(a).) The provision “‘prohibits multiple punishment for the same “act or omission.”’”
(People v. Correa (2012) 54 Cal.4th 331, 337.) “This restriction applies not only to a
single act violating multiple code provisions, but also to an indivisible ‘“course of
conduct”’ violating several statutes.” (People v. Fuentas (2022) 78 Cal.App.5th 670,
680.) “‘Whether a course of criminal conduct is divisible and therefore gives rise to more
than one act within the meaning of section 654 depends on the intent and objective of the
actor. If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.’” (Correa, at p. 336.)
“Whether section 654 applies in a given case is a question of fact for the trial
court, which is vested with broad latitude in making its determination.” (People v. Jones
(2002) 103 Cal.App.4th 1139, 1143.) “In the absence of any reference to [section 654]
during sentencing, the fact that the court did not stay the sentence on any count is
generally deemed to reflect an implicit determination that each crime had a separate
objective.” (People v. Tarris (2009) 180 Cal.App.4th 612, 626.) We uphold the trial
court’s express or implied factual findings if supported by substantial evidence. (People
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v. Brents (2012) 53 Cal.4th 599, 618.) “We review the trial court’s determination in the
light most favorable to the [People] and presume the existence of every fact the trial court
could reasonably deduce from the evidence.” (Jones, at p. 1143.)
Substantial evidence supports the trial court’s implied finding that Barnhill
harbored separate intents and objectives in evading law enforcement and in resisting
arrest. It was reasonable for the trial court to infer that in evading law enforcement in the
vehicle pursuit, Barnhill’s intent was to get away from law enforcement to avoid getting
caught and going to jail. It also was reasonable for the trial court to infer that Barnhill’s
objective when he exited the car and resisted arrest was no longer to evade capture but
instead was to get inside the house in order to hide exculpatory evidence, namely, the
firearms and ammunition that he was not allowed to possess.
We therefore conclude that the trial court’s failure to stay the sentences imposed
for the felony evasion and misdemeanor resisting arrest offenses (counts 8 & 10) is
supported by substantial evidence.
IV. Upper term on count 4
Barnhill’s felony violation of section 422 is punishable by terms of 16 months,
two years, or three years (§ 18), doubled because of the prior strike conviction
(§ 1170.12, subd. (c)(1)). Barnhill contends that the trial court prejudicially erred by
“imposing the upper term of three years on count 4 because no aggravating factors were
alleged and proved” under section 1170, subdivision (b) (§ 1170(b)). (Capitalization
24
omitted.) We agree that the trial court erred by relying on unproven aggravating factors
to impose the upper term, and the error was prejudicial.
A. Relevant proceedings
The information alleged numerous aggravating factors, including that “the offense
involved great violence, great bodily harm, threat of great bodily harm, or other acts
disclosing a high degree of cruelty, viciousness, or callousness within the meaning of
California Rules of Court, rule 4.421(a)(1).” The court bifurcated the trial on the
aggravating factors but subsequently struck the allegations before sentencing, at the
prosecution’s request.
Barnhill admitted during trial that he had a criminal record. He testified that in
2010 he was convicted of human trafficking in violation of section 236.1 and of pimping
in violation of section 266h, subdivision (a). He further testified that with respect to Doe
2 in 2020 he pled guilty to three counts of domestic violence (§ 273.5) and one count of
assault intended to cause bodily injury (§ 245, subd. (a)(4)) and admitted that Doe 2
suffered great bodily injury.
At sentencing in September 2023, the court imposed the upper term for count 4.
The court explained its reasoning as follows: “The court finds that the protection of
society and punishment are primary importance the sentencing objectives in this matter.
In addition, pursuant to Penal Code section 1170(b)(3) together with the totality of the
circumstances attending the commissions of the crimes of which the defendant was
convicted, together with the reasonable inferences and the actions drawn therefrom and
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the defendant[’s] criminal history and record of convictions, the court finds that the
aggravating factors outweigh the mitigating factors such that the court will select the
upper term for the imposition of a sentence as to Count 4.” Defense counsel objected to
the court “choosing the upper law” on the basis that “the only aggravating circumstance
the court has if the court can consider is prior convictions as the other aggravating
circumstances were dismissed by the prosecution.” Defense counsel also noted that there
were mitigating circumstances in that Doe 2 admitted to abusing Barnhill. The court
agreed about the mitigating circumstance but found it too slight to warrant imposing the
middle term, reasoning that “[t]he appropriate term given the totality of the circumstances
as the court indicated [in] its analysis is the upper term based on all the factors that the
court enumerated.”
B. Analysis
Rule 4.421 of the California Rules of Court sets forth circumstances in
aggravation that a court may consider in sentencing, including “[f]actors relating to the
crime, whether or not charged or chargeable as enhancements.” (Cal. Rules of Court,
rule 4.421(a).) Effective January 1, 2022, section 1170(b) “provides that the upper term
shall be imposed ‘only when there are circumstances in aggravation of the crime that
justify the imposition of a term of imprisonment exceeding the middle term’ (id., subd.
(b)(2)) and the circumstances are (1) stipulated to by the defendant, (2) found true by the
trier of fact beyond a reasonable doubt, or (3) based on prior convictions evidenced by a
certified record of conviction (id., subd. (b)(2)-(3)).” (People v. Butler (2023) 89
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Cal.App.5th 953, 958, overruled on another ground in People v. Lynch (2024) 16 Cal.5th
730, 768-769 (Lynch).)
A trial court violates a defendant’s Sixth Amendment right to a jury trial when it
“relies on unproven aggravating facts to impose an upper term sentence, even if some
other aggravating facts relied on have been properly established.” (Lynch, supra, 16
Cal.5th at p. 768.) The violation is prejudicial unless we can “conclude beyond a
reasonable doubt that the jury would have found the unproven aggravating facts to be true
had it been properly instructed. This prejudice inquiry does not allow us to uphold the
trial court’s imposition of an upper term sentence based on some subset of aggravating
facts.” (Id. at p. 761.)
The trial court erred by imposing the upper term on count 4 because it relied not
only on Barnhill’s “record of convictions” but also on “the totality of the circumstances
attending the commissions of the crimes of which the defendant was convicted, together
with the reasonable inferences and the actions drawn therefrom.” The court did not
specify what circumstances concerning the crimes’ commission it considered. Because
the trial court did not identify the facts relied on, we cannot “conclude beyond a
reasonable doubt that the jury would have found the unproven aggravating facts to be true
had it been” asked to do so. (Lynch, supra, 16 Cal.5th at p. 761.)
We remand the matter for resentencing. Given the prosecution’s voluntary
dismissal of all of the aggravating factors alleged in the information, the trial court on
remand may consider whether to impose the upper term on count 4 on the basis of the
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prior convictions that Barnhill admitted at trial. (§ 1170, subd. (b)(2); People v. Dorado
(2024) 105 Cal.App.5th 717, 739-740.) Moreover, because we are vacating Barnhill’s
sentence on count 4, he is entitled to a full resentencing, and we accordingly vacate his
entire sentence. (People v. Buycks (2018) 5 Cal.5th 857, 893.) Under the full
resentencing rule, “when part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed circumstances.’” (Ibid.; People
v. Valenzuela (2019) 7 Cal.5th 415, 424-425.) The sentence imposed on resentencing
may not exceed the original aggregate sentence. (People v. Jones (1994) 24 Cal.App.4th
1780, 1783-1784; People v. Hanson (2000) 23 Cal.4th 355, 357-358.)
DISPOSITION
The count 1 conviction under section 243, subdivision (e)(1), is reversed. On
remand, the prosecutor may choose to retry Barnhill on that count. We vacate the
sentence and remand the matter for resentencing consistent with this opinion. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J. We concur:
McKINSTER Acting P. J.
FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court committed prejudicial error by failing to instruct the jury on the legal requirements of self-defense regarding the misdemeanor battery charge, necessitating a reversal of that conviction. Additionally, the court erred by imposing an upper term sentence based on unproven aggravating facts.
Issues
Did the trial court err by failing to instruct the jury on self-defense for the misdemeanor battery charge?
Did the trial court err by failing to provide a unanimity instruction for the criminal threat count?
Did the trial court err by imposing an upper term sentence based on unproven aggravating facts?
Did the trial court err by failing to stay a sentence under section 654 for either felony evasion or misdemeanor resisting arrest?
Disposition. Affirmed in part, vacated in part, reversed in part, and remanded.
Quotations verified verbatim against the opinion
“We accordingly reverse the conviction under section 243, subdivision (e)(1), and remand for proceedings consistent with this opinion.”
“We agree about the self-defense instruction and the upper term.”