People v. Woodworth

Filed 3/29/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F069139 Plaintiff and Respondent, (Super. Ct. No. F13910540) v.

JAMES FRANKLIN WOODWORTH, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge. Eileen S. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Atttorneys General, for Plaintiff and Respondent. -ooOoo- James Franklin Woodworth1 was convicted of several counts related to the sexual assault of the victim, C. He argues the trial court committed two errors at sentencing.

1 We note the reporter’s transcript states that when he testified Woodworth stated his name was James Lincoln Woodworth. In all other portions of the record Woodward is identified as James Franklin Woodworth. We assume either Woodward misspoke or the court reporter erred when he testified, although the trial court should confirm his actual name on remand.

First, he contends the trial court did not recognize it had discretion to impose a concurrent sentence on the count charging him with dissuading a witness from testifying by force or threat. The dissuading a witness count was based on Woodward’s threat to harm C. if she reported the assault to the police. These facts implicated Penal Code section 1170.15,2 which provides the trial court must impose a full term sentence under specific conditions. As relevant here, this section provides that if a defendant is convicted of a felony, and he or she is also convicted of dissuading a witness from reporting or testifying about the first felony, then the trial court must impose a full term sentence for the dissuading a witness conviction instead of the normal one-third the midterm for a second felony. The trial court understood this section to require it to impose a full term consecutive sentence for the dissuading a witness felony. Woodworth argues, and the People concede, section 1170.15 applies only if the trial court first determines it will impose consecutive sentences for the dissuading a witness felony. Since the trial court did not realize it had discretion to impose a concurrent sentence for the dissuading a witness felony, we will remand the matter for resentencing. The second issue is whether there is sufficient evidence to support the three prior prison term enhancements alleged in the petition. Since Woodward admitted these enhancements, we will reject this argument. FACTUAL AND PROCEDURAL SUMMARY The Information Woodworth was charged with sodomy by force (§ 286, subd. (c)(2)), sodomy of an unconscious victim (§ 286, subd. (f)), dissuading a witness by force or threat (§ 136.1, subd. (c)(1)), making a criminal threat (§ 422), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)). The first count also alleged Woodworth tied or