People v. Terrell CA4/1

Filed 8/24/23 P. v. Terrell CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D080224

Plaintiff and Respondent, (Super. Ct. No. SCE403446) v.

MINOR TERRELL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Affirmed, as modified. Dawn S. Mortazavi, 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, Steve Oetting and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.

Minor Terrell was convicted of two aggravated assault charges arising

from the same act: assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1), count 1) and assault likely to produce great bodily injury, sometimes referred to as “force-likely” assault (§ 245, subd. (a)(4), count 2). The jury also found that Terrell personally used a deadly and dangerous weapon (a cane sword) within the meaning of section 1192.7, subdivision (c)(23). Without having the benefit of People v. Aguayo (2022) 13 Cal.5th 974 (Aguayo), the trial court stayed the sentence on count 2, imposed two years of formal probation, and as a condition of probation ordered Terrell to participate in any anger management treatment programs chosen by the probation officer. On appeal, Terrell contends, the Attorney General concedes, and we agree that under Aguayo, he cannot be convicted of both assault counts. The parties disagree, however, about the appropriate remedy. The Attorney General contends the two counts should be consolidated into a single conviction, whereas Terrell maintains his conviction on count 2 (force-likely assault) should be reversed. We hold that the counts should be consolidated. Terrell also contends that the probation condition requiring him to participate in any anger management treatment program is an overbroad delegation of judicial power. The claim is forfeited because defense counsel did not object in the trial court. In any event, reasonably construed as being limited to nonresidential treatment programs, the condition is a valid delegation of authority.