People v. Brummett CA3

Filed 12/15/21 P. v. Brummett CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C092526

Plaintiff and Respondent, (Super. Ct. No. 20F0717)

v.

ROBERT EARL BRUMMETT,

Defendant and Appellant.

Defendant Robert Earl Brummett appeals from his conviction for 21 offenses related to domestic violence, including criminal threats (Pen. Code, § 422; count 7),1 dissuading a witness by force or threat from reporting (§ 136.1, subd. (c)(1); count 8), and preventing or dissuading a witness or victim from testifying (id., subd. (a)(1); counts 22 and 23). The trial court sentenced defendant to an aggregate term of 36 years in

1 Further undesignated statutory references are to the Penal Code.

1

prison, including an eight-month term on count 7 and what the court believed to be mandatory consecutive full terms of three years on count 8 and two years on each of counts 22 and 23. The court also issued a protective order prohibiting defendant from contacting the victim except for matters involving their child, but it did not specify the order’s duration. On appeal, defendant claims we must remand because the trial court failed to exercise informed discretion when sentencing on counts 8, 22, and 23 because consecutive sentences were not mandatory, the sentence for count 7 must be stayed pursuant to section 654, we must remand to allow the court to determine the duration of the protective order, and the abstract of judgment must be corrected to reflect the imposed sentence. The Attorney General properly concedes each of defendant’s arguments. FACTS AND PROCEEDINGS In light of the limited issues raised by this appeal, we recount only the facts related to counts 7 and 8. Defendant went to the victim’s residence, where he argued with her, hit the side of her face with his hand, grabbed her by the arm, pulled her to the ground, and straddled her. He then pressed the muzzle of a loaded handgun tight and hard to her hairline. He held the gun on her as he hit the side of her face. This continued for about two hours during which he hit her at least 20 times. Defendant told the victim more than once, but less than five times: “If you go to the cops, I will kill you. They can’t hold me forever.” She was afraid, thought he was serious, and believed he could kill her. As a result, she did not report the incident to the police. A jury found defendant guilty of corporal injury with a prior corporal injury conviction (§ 273.5, subds. (a), (f); counts 1, 4, 10, 11, and 17), assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); counts 2 and 12), battery causing serious bodily injury (§ 243, subd. (d); count 3), assault with a semi-automatic firearm (§ 245,