People v. Turney CA6

Filed 5/28/21 P. v. Turney CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H046292 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. 18CR02023)

v.

CLINTON ALFRED TURNEY,

Defendant and Appellant.

I. INTRODUCTION Defendant Clinton Alfred Turney appeals after a jury found him guilty of making criminal threats (Pen. Code, § 422)1 and he admitted the allegations that he had a prior serious felony conviction (§ 667, subd. (a)(1)), a prior strike conviction (§ 667, subds. (b)-(i)), and a prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to nine years in prison. Defendant contends that the prior prison term allegation must be stricken; the matter must be remanded to allow the trial court to exercise its newly enacted discretion to strike the prior serious felony allegation; and the matter should be remanded for the trial court to strike an error in the probation report. The Attorney General concedes that the prior prison term enhancement must be stricken but argues that defendant’s remaining contentions are without merit.

1 All further statutory references are to the Penal Code unless otherwise indicated.

For reasons that we will explain, we reverse and remand the matter to the trial court to strike the prior prison term allegation and to determine whether to exercise its discretion to strike the prior serious felony allegation. II. FACTUAL AND PROCEDURAL BACKGROUND A. Prosecution Case Defendant’s ex-wife divorced defendant in 2013 after years of primarily verbal abuse. Defendant also had addiction issues. Defendant was arrested in 2014 for sending ex-wife threatening letters and making threatening phone calls. Ex-wife got a domestic violence restraining order against defendant, but defendant continued to send her threatening letters. Defendant was prosecuted. The District Attorney notified ex-wife when defendant was released from custody. In March or April 2017, defendant’s ex-wife became aware of defendant’s Facebook page. On January 1, 2018, ex-wife saw several posts dated December 31. “[T]he context [sic] of the posts immediately made [her] think they were directed towards [her].” One of the posts stated, “Hey punk bitch hope your watchen me real close cause im doin this fer you i like to play with my victims before [¶] eat them [¶] FRUIT.” Ex- wife assumed the post was directed to her and that defendant was watching her and trying to scare her. Defendant had called ex-wife “a punk bitch” throughout their relationship. Another post said, “My retribution check list [¶] White tuxedo, zip ties, load speaker, dull scissors, camcorder, WiFi connection [¶] and a brick!” Ex-wife thought this was “retribution and how he[] [was] going to kill [her] for putting him away.” Another post stated, “Yes im a dreamer we’re ment to be together punk bitch I like bricks alot n they look good on you.” Defendant used to tell ex-wife that he was going to smash her teeth in and “make [her] face a bloody mess with a brick”; defendant threatened to harm her with bricks “all the time.” Some of the posts made ex-wife think that defendant knew where she lived. Defendant’s “relationship status” was “[w]idowed,” which concerned