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P. v. Lollis CA5

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P. v. Lollis CA5
By
02:19:2018

Filed 1/9/18 P. v. Lollis CA5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM MATTHEW LOLLIS,

Defendant and Appellant.

F073309

(Super. Ct. No. F13902514)


OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge.
Sylvia W. Beckham, 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, Catherine Chatman and Jeffrey Grant, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-


INTRODUCTION
A jury convicted defendant William Matthew Lollis of making criminal threats (Pen. Code § 422; count 1), resisting an executive officer (§ 69; count 2), attempting to dissuade a witness (§ 136.1, subd. (b)(2); counts 4–14 & 16–23), and attempting to dissuade a witness by threat of force (§ 136.1, subd. (c)(1)); count 15). In a bifurcated proceeding, it was found true that defendant had a prior serious felony conviction and had served prior prison terms. At the original sentencing hearing on September 24, 2013, the trial court struck defendant’s prior prison term enhancements and imposed a total prison term of 92 years four months.
In his second appeal, defendant challenges the sentence imposed on him following this court’s opinion in his prior appeal (People v. Lollis (Sept. 30, 2015, F068129) [nonpub. opn.]), and the resulting disposition affirming his convictions, vacating his sentence, and remanding the matter to the trial court for resentencing. At the resentencing hearing on December 14, 2015, the court imposed the same sentence on defendant as it did in the original sentencing hearing, resulting again in a total prison term of 92 years four months.
Defendant contends: (1) the trial court abused its discretion by resentencing him to consecutive terms for his convictions of dissuading a witness based on phone calls he made from jail to the victim on March 18, 2013 (i.e., counts 4–19); (2) his total prison term of 92 years four months is cruel and unusual punishment; (3) section 4019 entitles him to additional presentence custody credits for time he spent in custody awaiting resentencing; and (4) the resentencing minute order must be corrected to omit any reference to prior prison term enhancements. We disagree with all but defendant’s fourth contention, which the People concede. We therefore remand the matter with directions to correct the resentencing minute order and issue a new abstract of judgment. In all other respects, we affirm the judgment.
FACTS
“On March 17, 2013, at 9:55 p.m., Feness Flores called 911 after receiving several threatening voicemails from [defendant] stating he was going to kill her, kill her children, and kill the father of the children. The responding officer, Caroline Ponce, obtained an emergency protective order and went to serve it on [defendant].
“[Defendant] would not come out of his house. He threatened to kill the officers and the K-9 officer that were present. Detective David Wilkin went to the back of the house in an attempt to apprehend [defendant]. Wilkin used his baton to move the curtains blocking a broken window; [defendant] grabbed the baton and pulled, which resulted in the glass shards cutting Wilkin. Eventually, officers took [defendant] into custody and Ponce served the protective order on him.
“While in jail awaiting trial, [defendant] made numerous phone calls to Flores. Over the course of the numerous phone calls, [defendant] discouraged Flores from assisting in his prosecution. [Defendant] repeatedly asked Flores not to press charges; stated he was a vengeful person; told Flores to stay away from the courtroom; and instructed Flores to write a letter stating she had fabricated her accusations against him.”
DISCUSSION
I. Imposition of Consecutive Terms
Defendant contends the trial court abused its discretion on remand by again selecting consecutive terms for his convictions of attempting to dissuade a witness in counts 4 through 19. According to defendant, the record does not support the reasons the court gave for selecting the harsher punishment and reflects an improper dual use of facts. Assuming, without deciding, defendant did not forfeit his claim as the People assert, we need not resolve whether the selection of consecutive terms constituted an abuse of the court’s discretion because we agree with the People that the court found consecutive sentencing was mandatory under section 667, subdivision (c)(6), and defendant has not demonstrated any error in this finding.
In support of his abuse of discretion claim, defendant interprets certain statements of the trial court as clarifying that it was not finding consecutive sentencing was mandated by section 667, subdivision (c)(6), but was imposing consecutive terms solely as a matter of discretion. Our review of these and other statements of the court at resentencing, in light of the record as a whole, compels us to reject defendant’s interpretation and conclude that a more reasonable interpretation of the trial court’s statements was that they were simply expressing agreement with both the People’s main argument (consecutive sentencing was mandated by § 667, subd. (c)(6)), and the People’s alternative argument (“even if” consecutive terms were not mandated, the court should exercise its discretion to impose them in any event). That the trial court agreed with the People’s main argument and found consecutive terms were mandated by section 667, subdivision (c)(6), finds further support in the resentencing minute order, which contains a handwritten notation specifically stating: “Court imposes consecutive sentencing pursuant to [Penal Code section] 667[, subdivision] (c)(6).”
Defendant has not demonstrated any error in the trial court’s finding that consecutive sentencing was mandatory under section 667, subdivision (c)(6). Thus, as previously mentioned, we need not assess the validity of the court’s reasons for agreeing with the People’s alternative argument that the court should exercise its discretion to impose consecutive terms, even if they were not mandatory. Defendant essentially acknowledges the trial court could lawfully impose consecutive terms for his separate convictions of violating section 136.1. (See People v. Correa (2012) 54 Cal.4th 331, 344 (Correa) [plain language of section 654 does not bar multiple punishment for multiple violations of same criminal statute].)
Describing Correa as a “radical departure” from prior case authorities, however, defendant maintains that fairness dictates imposition of concurrent terms for his multiple violations of section 136.1, because, in his words, “his attempt to dissuade the witness is a communication-based crime, with a single objective of attempting to dissuade the witness from cooperating with and assisting the prosecution.” Radical departure or no, Correa’s reasoning is clearly applicable and requires us to reject defendant’s fairness challenge to the imposition of multiple punishment for his violations of section 136.1. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
As the California Supreme Court explained, “ ‘A person who commits separate, factually distinct, crimes, even with only one ultimate intent and objective, is more culpable than the person who commits only one crime in pursuit of the same intent and objective.’ ” (Correa, supra, 54 Cal.4th at p. 341.) Applying this reasoning here, we find a person who makes, on one day, 16 separate phone calls from jail to a crime victim, even with only one ultimate intent and objective to dissuade the victim from assisting in his prosecution, is more culpable than a person who makes only one phone call in pursuit of the same goal.
II. Cruel and Unusual Punishment Claim
Defendant contends that his aggregate term of 92 years four months constitutes cruel and unusual punishment. Defendant acknowledges this court considered and rejected the same claim in our prior opinion, and that he is raising it again primarily to preserve it for future federal review. We agree with the People that our prior opinion bars us from revisiting defendant’s claim under “the law of the case doctrine.” (People v. Barragan (2004) 32 Cal.4th 236, 246.)
III. Presentence Custody Credits Under Section 4019
Defendant contends section 4019 entitles him to additional presentence custody credits for the time he spent in jail awaiting resentencing after this court vacated his original sentence on September 30, 2015, until the trial court resentenced him on December 14, 2015. Despite defendant’s contrary assertions, California Supreme Court precedent supports the conclusion he maintained his postsentence status throughout the resentencing process and is not entitled to additional presentence custody credits under section 4019. (See People v. Buckhalter (2001) 26 Cal.4th 20, 32, 34, 36, 40–41; In re Martinez (2003) 30 Cal.4th 29, 31; People v. Johnson (2004) 32 Cal.4th 260, 263, 265–266.)
IV. Correction of Resentencing Minute Order and New Abstract of Judgment
Defendant contends, the People concede, and we agree that a limited remand is required to correct the resentencing minute order to strike any reference to prior prison term enhancements imposed on defendant pursuant to section 667.5, subdivision (b). As defendant correctly points out, the trial court dismissed his prior prison term enhancements in the interest of justice at the original sentencing hearing, and the order dismissing the enhancements, from which the People never appealed, is a final order. (See § 1238, subd. (a)(8).) We also agree with the parties that the trial court, which did not issue a new abstract of judgment after resentencing defendant, must issue a new abstract of judgment, omitting any reference to prior prison term enhancements, in conformity with the required correction to the resentencing minute order.
DISPOSITION
The matter is remanded to the trial court with directions to correct the resentencing minute order to strike any reference to the imposition of prior prison term enhancements, issue a new abstract of judgment reflecting this correction, and forward a copy of the new abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.



HILL, P.J.
WE CONCUR:



DETJEN, J.



PEÑA, J.




Description A jury convicted defendant William Matthew Lollis of making criminal threats (Pen. Code § 422; count 1), resisting an executive officer (§ 69; count 2), attempting to dissuade a witness (§ 136.1, subd. (b)(2); counts 4–14 & 16–23), and attempting to dissuade a witness by threat of force (§ 136.1, subd. (c)(1)); count 15). In a bifurcated proceeding, it was found true that defendant had a prior serious felony conviction and had served prior prison terms. At the original sentencing hearing on September 24, 2013, the trial court struck defendant’s prior prison term enhancements and imposed a total prison term of 92 years four months. In his second appeal, defendant challenges the sentence imposed on him following this court’s opinion in his prior appeal (People v. Lollis (Sept. 30, 2015, F068129) [nonpub. opn.]), and the resulting disposition affirming his convictions, vacating his sentence, and remanding the matter to the trial court for resentencing.
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