P. v. Munoz

Filed 3/6/06 P. v. Munoz CA4/1

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California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Timothy M. Casserly, Judges. Affirmed in part and reversed in part.

A jury convicted Paul William Munoz of two counts of assault with a deadly weapon (Pen. Code, ^[1] § 245, subd. (a)(1)) and one count of making a criminal threat (§ 422). The jury also found true the allegation that Munoz personally used a deadly or dangerous weapon in the commission of the threat (§ 12022, subd. (b)(1)). Munoz was sentenced to 14 years eight months in prison.

On appeal, Munoz challenges both his convictions and his sentence. He asserts that each of his convictions must be reversed because the trial court violated his rights to due process under the United States and California Constitutions by denying his request for a continuance of the preliminary hearing. Alternatively, Munoz argues his conviction for making a criminal threat must be reversed because it is unsupported by the evidence. He also contends that his sentence is invalid because the trial court misapprehended the scope of its sentencing discretion under the governing sentencing statutes. As discussed post, we disagree with Munoz's contentions that his convictions are invalid but agree, as does the Attorney General, that the case must be remanded for resentencing.

FACTS

On the evening of June 16, 2004, Michael Pike and a handful of friends, including Devon Kobashigawa and Chris Patterson, were in a Big Lots parking lot in Oceanside. Pike observed an acquaintance with whom he was angry, Fidel Marquez, in the parking lot standing with Munoz and three other persons. Pike charged Marquez and slammed him to the ground. As Pike climbed on top of Marquez to continue the assault, Munoz jumped on Pike and stabbed Pike repeatedly in the back with a blunt knife. Pike's friends, who had not joined in the initial fight, yelled at Munoz to stop. Munoz climbed off of Pike's back, and began swinging his knife "very wildly" at Pike, Patterson and Kobashigawa, nicking Kobashigawa's right arm.

Marquez told Munoz not to interfere and asked him to leave; Munoz complied, walking off in the direction of a nearby apartment complex. Marquez and Pike then resolved their dispute without further violence, and Marquez left the scene. Pike and Kobashigawa, who sustained only minor injuries, began walking with their companions back toward their cars.

As Pike was walking, one of his friends yelled at him to watch out. The warning came too late. Before Pike could react, Munoz, who had returned to the scene armed with a "big butcher knife," came up behind Pike and cut him in the lower back. Swinging the knife, Munoz then looked at Pike, Kobashigawa and Patterson and told them to give him their wallets or he would kill them.

After repeatedly backing away from Munoz to avoid being stabbed, Pike "finally got tired of backpedaling and dealing with th[is] garbage" and used his cell phone to call the police. While Pike was on the phone, Munoz fled the scene. As he left, Munoz yelled out the name of a street gang and made hand signs, that the prosecution alleged were gang related.

Police arrived and soon located Munoz hiding in a bathroom in the nearby apartment complex. The police found the two knives that Munoz used in the assaults in a drawer in the apartment where Munoz was hiding. Munoz was detained by the police, and Pike and Kobashigawa identified him as the man who attacked them.

Munoz was charged by information with seven criminal offenses: count 1, attempted murder of Pike (§§ 664, 187, subd. (a)); counts 2 through 4, attempted robbery of Pike, Kobashigawa and Patterson (§§ 664, 211); counts 5 and 6, assault with a deadly weapon of Pike and Kobashigawa (§ 245, subd. (a)(1)); and count 7, making a criminal threat to Pike (§ 422). The information further alleged that Munoz committed each of the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that in committing the offenses in counts 1 through 4 and 7, Munoz personally used a deadly weapon (§ 12022, subd. (b)(1)).

After trial, the jury found Munoz guilty of assault with a deadly weapon on Pike (count 5), assault with a deadly weapon on Kobashigawa (count 6), and making a criminal threat against Pike (count 7), as well as misdemeanor assault on Pike as a lesser included offense of the attempted murder charge in count 1; it also found true the allegation that Munoz personally used a deadly weapon in the commission of count 7. The jury found not true that the offenses were committed for the benefit of a criminal street gang. It was unable to reach a verdict on the attempted robbery counts (counts 2-4); these counts, along with the misdemeanor assault conviction in count 1, were subsequently dismissed.

After the jury's verdict, the trial court found true the prosecution's allegations that Munoz had suffered a prior violent felony conviction (§ 667.5, subd. (a)), a prior serious felony conviction (§§ 667, subd. (a)(1)/668, 1192.7, subd. (c)) and a prior strike conviction (§§ 667, subds. (b)-(i)/1170.12, 668). The court then struck the prior violent felony conviction and sentenced Munoz to 14 years eight months in prison. The sentence consisted of: six years for the assault on Pike (count 5); two years for assault on Kobashigawa (count 6); and one year four months for the criminal threat against Pike (count 7) -- all to run consecutive, with an additional five years for Munoz's prior serious felony conviction, under section 667, subdivision (a)(1); and an additional four months for Munoz's use of a knife to commit the threat, under section 12022, subdivision (b)(1).

DISCUSSION

Munoz makes multiple challenges to both his convictions and his sentence. We address each of his contentions separately below.

I

The Trial Court Did Not Violate Munoz's Due Process Rights by Denying His

Request for a Continuance of the Preliminary Hearing

Munoz first contends that the trial court's denial of his July 14, 2004 request for a continuance of the preliminary hearing deprived him of his rights to due process under the United States and California Constitutions. Our analysis of this contention requires a brief summary of the pertinent facts and applicable law.

A

Facts Relating to Continuance Request

Munoz was arraigned on June 18, 2004, at which time he was represented by an appointed public defender. At arraignment, a readiness conference was set for June 29 and a preliminary hearing for July 1. At the June 29th readiness conference, at Munoz's request, another readiness conference was scheduled for July 7th and the preliminary hearing date was postponed until July 14.

At the July 7th readiness conference, Munoz's appointed counsel sought another readiness conference, and another continuance of the preliminary hearing, stating, ". . . I am obviously not properly prepared for it now and it's only a week away[;] I would like to continue it."^[2] The prosecutor opposed the continuance on the grounds that three civilian witnesses had already been subpoenaed for the July 14th preliminary hearing, and "the victim" had expressed "consternation" about the prior continuance. The court granted Munoz's request for another readiness date, but retained the preliminary hearing date, noting that repeated continuances placed a burden on the prosecution and its civilian witnesses. The court stated, "Unless something extraordinary happens within the week, I am not going to move the prelim[inary hearing] date. It's already been continued once. I think a week is enough time to prepare."^[3]

On July 14, the date of the preliminary hearing, Munoz again moved the court to continue the preliminary hearing, this time on the ground that he wanted to obtain a private lawyer. Munoz's counsel stated:

"Mr. Munoz has told me he was given to believe that . . . a private lawyer would be retained for him. He gave me a phone number to call. I called the number, but left a message. No one was there. I haven't been contacted by anybody today on behalf of Mr. Munoz."

Counsel concluded:

"My understanding is Mr. Munoz moves the court to continue today's hearing so that he can get the private lawyer."

The trial court denied the motion, stating:

"This is not the time. It wouldn't be timely if the private lawyer showed up today. [I]f the private lawyer showed up today, I might have granted the continuance. But with him not even being here today, this is not good cause. I'm not going to grant the continuance."^[4]

The trial court then proceeded with the preliminary hearing at which Munoz was represented by his appointed counsel. The prosecution presented the testimony of three civilian witnesses (Pike, Kobashigawa and Patterson) and three police officers. At the conclusion of the hearing, the court found probable cause to hold Munoz for trial. Trial was set for September 2, 2004. The trial was subsequently continued to September 20, and then, at Munoz's appointed counsel's request, continued again until November 8. Munoz made no further requests of the court regarding his desire to obtain private counsel, and when trial commenced on November 8, 2004, Munoz was represented by the appointed defender who represented him at the preliminary hearing.

B

Applicable Legal Principles

"[D]ue process of law, as it is expressed through the right-to-counsel provisions of the state and federal Constitutions, comprehends a right to appear and defend with retained counsel of one's own choice." (People v. Byoune (1966) 65 Cal.2d 345, 346 (Byoune).) This right, however, "is not absolute" and must be balanced against countervailing interests, such as the government's " 'interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of "assembling the witnesses, lawyers, and jurors at the same place at the same time." ' '' (People v. Ortiz (1990) 51 Cal.3d 975, 983-984 (Ortiz).) Thus, while the trial court should endeavor to accommodate a defendant's request to obtain private counsel of his choice, it is not required to do so where an accommodation will result " 'in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.' " (People v. Courts (1985) 37 Cal.3d 784, 790 (Courts).) In deciding whether the denial of a continuance to obtain private counsel "was so arbitrary as to violate due process," we evaluate "the circumstances of [the] case" and " ' "particularly . . . the reasons presented to the trial judge at the time the request [was] denied." ' " (Id. at p. 791.)

C

The Trial Court's Denial of Munoz's Continuance Request Was Well-founded

Munoz contends that the trial court's denial of his July 14th continuance request was arbitrary and violated due process because Munoz presented a valid reason for a continuance, namely, his desire to obtain retained counsel, and there were no factors justifying denial. We disagree, concluding that the trial court's ruling was not arbitrary but instead was supported by appropriate considerations.

First, Munoz's request to continue the preliminary hearing was untimely. Requests for continuances that are made on the date of the event sought to be continued, as Munoz's request was here, jeopardize the orderly administration of justice (Ortiz, supra, 51 Cal.3d at pp. 983-984), and trial courts have increased latitude to deny such requests. (People v. Molina (1977) 74 Cal.App.3d 544, 548 ["while generally a defendant is entitled to be represented by counsel of his own choosing, the right must be asserted in a timely fashion"]; People v. Jeffers (1987) 188 Cal.App.3d 840, 850 ["Where a continuance is requested on the day of trial, the lateness of the request may be a significant factor justifying denial absent compelling circumstances to the contrary"]; cf. Courts, supra, 37 Cal.3d at pp. 791-792 & fn. 4 [distinguishing request for continuance of trial in case that was made "a week before trial" from "eve-of-trial, day-of-trial, and second-day-of-trial requests" found to have been properly denied in other cases].) Munoz's contention that his request was not untimely because it came "four full months before the jury was ultimately sworn [in]" for his trial, is unavailing. Munoz's request was to continue the preliminary hearing, not the trial. Thus, the timeliness of Munoz's continuance request must be evaluated with reference to the date of the preliminary hearing, not the date of the eventual trial.

Second, the hardship that a continuance will place on civilian witnesses and victims is a legitimate factor for a court to consider in denying a continuance request. (See § 1050, subd. (a) [codification of legislative finding that "criminal courts are becoming increasingly congested" and that "[e]xcessive continuances contribute substantially to this congestion and cause substantial hardship to victims and other witnesses"]; Courts, supra, 37 Cal.3d at p. 795 [continuance request should have been granted because, inter alia, the witnesses "appearances were not imminent" and request "would not have disrupted their schedules"].) Here, the trial court was informed by the prosecutor at the July 7th readiness conference that three civilian witnesses had been subpoenaed for the July 14th preliminary hearing and the victim had already been inconvenienced by the prior continuance. Consequently, the trial court's ruling was supported by the fact that another continuance, announced on the date set for the preliminary hearing, would cause further hardship for the civilian victims and witnesses who had been subpoenaed to appear that day.

Third, at the time of Munoz's request for a continuance, the trial court was informed of only a possibility that Munoz would retain private counsel. A trial court has greater latitude to deny a request for a continuance for purposes of substituting private counsel when the prospect that a defendant will retain such counsel is "still quite speculative at the time the motion for continuance [i]s made." (Courts, supra, 37 Cal.3d at p. 791, fn. 3 [emphasizing the request in that case, which was accompanied by testimony establishing that "a lawyer-client relationship had been established" with prospective retained counsel, was distinguishable from requests in "cases which have upheld the denial of a continuance on the ground that participation by a particular private attorney was still quite speculative at the time the motion for continuance was made"].) Here, the proffer before the trial court regarding Munoz's continuance request was that Munoz had been "given to believe" that a private lawyer would be retained for him, but that the lawyer had failed to contact Munoz's appointed counsel. This request suggested on its face that a private lawyer had not yet been retained for Munoz; the request further lacked such basic information as the name of the private lawyer, whether the lawyer had, in fact, agreed to represent Munoz, when the lawyer would be available, and why the lawyer had thus far failed to contact either the court or Munoz's appointed counsel. (See People v. Johnson (1970) 5 Cal.App.3d 851, 858-859 [upholding trial court's denial of day-of-trial request for continuance to obtain private counsel where private counsel had not contacted court, and witnesses had been subpoenaed, because "[t]o continue the trial at such a date on such nebulous grounds would adversely affect the orderly administration of justice"].)

Contending that his request for a continuance was prompted by the prosecutor's stated intention to file an amended information with additional charges, Munoz asserts the trial court nevertheless was required to grant his request for continuance under our Supreme Court's decision in Byoune, supra, 65 Cal.2d 345. (See id. at p. 348 [holding that trial court should have granted defendant's request for continuance where "the prosecution added a new and more serious charge at a time which precluded defendant from obtaining private counsel before the scheduled commencement of trial"]; § 1050, subd. (e) ["Continuances shall be granted only upon a showing of good cause"].) We disagree, as Byoune is distinguishable.

In Byoune, the defendant specifically informed the court that "the addition of the more serious charge of robbery caused him to reconsider his decision" to be represented by appointed counsel, a reason that the Byoune court determined was sufficient under the circumstances of that case to justify a continuance. (Byoune, supra, 65 Cal.2d at p. 347.) Here, by contrast, the trial court was not told that Munoz's request for a continuance stemmed from the additional charges. While Munoz's counsel did inform the court during the July 14th discussion that the prosecutor "intend[ed] to file an amended charging document that adds a lot of time to the charges," this was in the context of discussing whether Munoz would accept the prosecution's plea offer, not the request for a continuance. In fact, the referenced amendments to the information were the subject of ongoing discussions on the record well prior to the July 14th hearing. For example, the prosecutor stated at the July 7th conference: ". . . I have discussed with the court and with [Munoz's counsel] that I intend to amend the complaint prior to [the] preliminary hearing," and then went on to detail the proposed amendments. There is no indication in the record that Munoz sought a continuance on this basis at any time prior to the date of the preliminary hearing, such as at the July 7th or the July 12th readiness conferences. (Compare Byoune, at p. 347 [defendant "promptly informed the court of his desire to obtain private counsel after he learned of the [additional] robbery charge"].) Consequently, the court could have reasonably assumed that Munoz's request stemmed from some other grounds, such as Munoz's earlier-expressed preference for an alternate appointed counsel, or simply a desire to stall the proceedings -- reasons that would not justify a continuance. (Courts, supra, 37 Cal.3d at p. 791 [review of the trial court's ruling must focus on " ' "the reasons presented to the trial judge at the time the request [for a continuance was] denied" ' "].)^[5]

In sum, we conclude that given the factors favoring the trial court's denial of the motion for continuance and the limited justification for a continuance presented to the court by Munoz at the time of his request, Munoz has not carried his burden of demonstrating that the trial court's denial of his request was so arbitrary as to violate due process.

II

The Evidence Was Sufficient to Support the Conviction for Criminal Threats

Munoz next challenges his conviction for making a criminal threat under section 422, contending that the evidence was insufficient to support a conviction for that offense.

The role of a reviewing court in evaluating a challenge to the sufficiency of the evidence "is a limited one"; we must determine " 'whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa).) In making this determination, we " 'view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (Ibid.)

Munoz's specific contention is that the evidence was insufficient to establish a required element of a section 422 offense, namely, that Munoz's threat placed Pike in "sustained fear." (§ 422 [criminalizing threats that, inter alia, cause person threatened to "be in sustained fear for his or her own safety"]; People v. Toledo (2001) 26 Cal.4th 221, 228 [defining elements of section 422 offense].)^[6] Munoz asserts that the evidence shows that if Pike, the victim of the charged threat, suffered "any fear at all," that fear was "no more than momentary, fleeting or transitory," and thus not the "sustained fear" necessary for a conviction under section 422. (See People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen) [defining "sustained" in section 422 to "mean[] a period of time that extends beyond what is momentary, fleeting, or transitory"].)

Our review of " 'the entire record' " demonstrates that Munoz's claims are without merit. (Ochoa, supra, 6 Cal.4th at p. 1206.)

In evaluating whether Munoz's threat placed Pike in sustained fear, the jury was permitted to consider the threat itself, Munoz's conduct during the time period in which he uttered the threat, and Pike's "knowledge of [Munoz's] prior conduct." (Allen, supra, 33 Cal.App.4th at p. 1156 ["The victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear"].) Here, the evidence showed that Pike was aware Munoz had previously jumped on his back and stabbed him repeatedly with a smaller knife, causing puncture wounds. Then, after briefly vanishing, Munoz returned with a "big butcher knife" and, without any warning, again cut Pike in the back. Munoz subsequently looked at Pike and stated, "Give me your wallet or I'll kill you." Munoz, who appeared "angry," continued to swing the butcher knife, "waving it like he was going to use it" and pointed it in Pike's direction from as close as "a few feet" away while attempting to move closer.

Pike testified that as a result of these circumstances, Munoz's threat placed him in a state of fear for his safety. Pike articulated that this was because Munoz "had a knife" and Pike "thought [Munoz] was going to try to stab [him]." Pike further emphasized that the second incident, involving the threat, was more frightening than Munoz's first assault because Munoz's knife was "bigger" and "had a point," and Pike "could see that [it] would definitely do something [to Pike] if that [knife] was to strike [him]."^[7]

The testimony regarding the events immediately following the threat similarly established that Pike's fear lasted for a sustained, i.e., not a momentary, period of time. Pike testified Munoz swung the knife multiple times after issuing the threat, and then held the knife a foot away from his body while advancing at Pike. Pike had to "keep backing up" to avoid being cut. Although Pike did not explicitly state how long the attack lasted, he testified that Munoz only ceased the attack when Pike "finally got tired of backpedaling" and called police on his cell phone. (Italics added.) Even then, Pike suggested he was still in fear; Pike emphasized that while he was on the phone, he was "keeping my eyes on [Munoz], keeping [Munoz] away from me." Similarly, Kobashigawa testified that after uttering the threat, Munoz "kept coming at us," and that Kobashigawa had to tell his companions to "keep backing up" because Munoz "was coming at [them] with the knife." Kobashigawa also detailed how his and his companions' efforts to evade Munoz after the threat forced them to move around Kobashigawa's truck and a shopping cart holder that were located in the parking lot. This testimony, viewed in the light most favorable to the prosecution, permits a reasonable inference that Munoz's threat caused Pike fear for his safety that lasted for "a period of time that extend[ed] beyond what is momentary, fleeting, or transitory." (Allen, supra, 33 Cal.App.4th at p. 1156.)

Rather than directly confront this evidence, Munoz focuses on two aspects of the testimony he believes support his claim that Pike suffered no sustained fear, namely, Pike did not immediately call the police, and Pike did not surrender his wallet. These are jury arguments, however, and have little relevance on appeal. Our role as a reviewing court is not to reweigh the evidence, but rather to view that evidence " 'in the light most favorable to the People' " and " 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (Ochoa, supra, 6 Cal.4th at p. 1206.) Here, the jury could reasonably infer that Pike's delay in calling the police stemmed not from an absence of fear, but from his reluctance to involve the authorities as he had initiated the original attack on Marquez. That Pike did call the police, in spite of his reluctance, supports, rather than calls into question, the jury's finding that Pike was in sustained fear.

Munoz's contention that there was no actual fear because Pike did not give him his wallet is similarly subject to reasonable, contrary inferences. For example, Pike may have decided to retain his wallet in spite of his fear, or felt that keeping a safe distance from Munoz was more important than complying with his demands.

III

Remand Is Required for Resentencing on Count 7

Munoz next argues that even if his convictions are upheld, the case must be remanded for resentencing with respect to count 7 (making a criminal threat) because the trial court misapprehended the scope of its discretion under the pertinent sentencing statutes. Munoz makes two separate arguments with respect to why his sentence on count 7 was improper, each of which we address below after setting forth the pertinent sentencing facts.

A

Pertinent Sentencing Facts

The trial court sentenced Munoz to one year eight months on count 7 and ordered that this sentence be served consecutively to the sentences on the other two counts -- count 5 (assault with a deadly weapon on Pike) and count 6 (assault with a deadly weapon on Kobashigawa). In pronouncing this sentence, the trial court stated that a consecutive sentence on count 7 was required "[b]y law, under the current state of the strike law . . . ."

B

The Trial Court Misapprehended Its Discretion in Sentencing Munoz on Count 7

Munoz first contends that the trial court was incorrect that the three strikes law, section 667, required a consecutive sentence on count 7. He argues the court's misapprehension of its discretion to impose a concurrent sentence on that count requires remand for resentencing. The Attorney General agrees, and we believe this concession is warranted.

Under the three strikes law, "consecutive sentences are not mandated . . . if all of the current felony convictions are either 'committed on the same occasion' or 'aris[e] from the same set of operative facts.' " (People v. Lawrence (2000) 24 Cal.4th 219, 222-223.) As the offenses charged in counts 5 and 7 were committed on the same occasion and arguably also arise from the same set of operative facts, the trial court had discretion to sentence Munoz concurrently on counts 5 and 7.^[8] (See Lawrence, supra, 24 Cal.4th at p. 227 [crimes that are "committed in one location, were brief in duration, and were committed essentially simultaneously against the same group of victims," fit easily within the term "committed on the same occasion"]; id. at p. 233 [arising from same set of operative facts means "sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted"].)

In light of the Attorney General's concession that the trial court failed to recognize that it was not required to sentence Munoz consecutively on count 7, and our acceptance of that concession, the case must be remanded for resentencing. (See People v. Deloza (1998) 18 Cal.4th 585, 600.)

C

The Trial Court's Exercise of Its Discretion Under Section 654 Was

Compromised by Its Erroneous Assumption Regarding Section 667

Munoz next argues that the trial court's imposition of any sentence, whether consecutive or concurrent, on count 7 violates section 654, which mandates that an offender can only be punished one time for a single act. Munoz contends that the threat against Pike charged in count 7 is "indivisible" from the assault on Pike charged in count 5, and therefore his six-year sentence on count 5 precludes further punishment on count 7.

Section 654 prohibits multiple punishments for offenses that are "committed during 'a course of conduct deemed to be indivisible in time.' " (People v. Harrison (1989) 48 Cal.3d 321, 335.)^[9] Whether offenses are "indivisible" for these purposes is determined by the "defendant's intent and objective, not the temporal proximity of his offenses." (Harrison, supra, 48 Cal.3d at p. 335.) Separate punishments are prohibited for offenses that "were merely incidental to, or were the means of accomplishing or facilitating one objective," but are permitted where the "defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other." (Ibid.) "The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312 (Hutchins).)

The parties agree that the trial court made no explicit findings on this question. While a reviewing court in such a situation will normally imply a section 654 finding from the sentence imposed and affirm that finding as long as there is substantial evidence to support it (see, e.g., People v. Nelson (1989) 211 Cal.App.3d 634, 638), we decline to do so in the instant case. The trial court's explicit statements during sentencing suggest that even if we were to construe the trial court to have made an implicit finding under section 654, that finding is compromised by the court's erroneous assumption regarding its discretion under section 667.

As we have noted, the trial court imposed a one-year eight-month sentence of imprisonment on count 7 and stated that "[b]y law," under section 667, the sentence would be served consecutively. Assuming that the trial court implicitly considered the applicability of section 654, the court's erroneous assumption that a consecutive sentence was required under section 667 calls into question whether the court properly understood the scope of its discretion under section 654. (People v. Danowski (1999) 74 Cal.App.4th 815, 823 ["Even though under the three strikes law, section 654 is irrelevant to mandatory consecutive sentencing, mandatory consecutive sentencing may be relevant to section 654"].) When a consecutive sentence is mandated under section 667, that statute also states that the sentence must be imposed "[n]otwithstanding any other law" -- a requirement which may have led the court to conclude that it had no discretion to decline to impose punishment on count 7 under section 654. (§ 667, subd. (c); Danowski, at pp. 823-824 [noting that while section 654 operates independently of the three strikes law where that law does not mandate consecutive sentencing, it arguably "creates a legislative exception to section 654" when consecutive sentencing is required].)^[10]

As the parties agree the case must be remanded for resentencing on count 7 for other reasons (see part III.B, ante), we conclude that the best course in these circumstances is to allow the trial court to exercise its discretion regarding this question on remand, unclouded by its erroneous assumption that section 667 mandated a consecutive sentence. (People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1248 ["Where a trial court imposes sentence without an accurate understanding of its sentencing discretion, remand for resentencing is appropriate"]; People v. Meloney (2003) 30 Cal.4th 1145, 1165.)

DISPOSITION

Munoz's convictions are affirmed. His sentence is vacated and the matter is remanded to the trial court for resentencing on count 7 in accordance with part III.B, ante, of this opinion.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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

^[2] On this same date, Munoz, who claimed he was experiencing difficulties communicating with his appointed attorney, also requested that this attorney be replaced with another appointed attorney, and made a specific request for appointment of an alternate public defender who previously represented him. The court denied this request after a Marsden hearing, stating that Munoz was not entitled to appointed counsel of his choice. (See People v. Marsden (1970) 2 Cal.3d 118, 123.) The court urged Munoz to cooperate with his attorney who, the court noted, was a capable and experienced defense attorney. On appeal, Munoz does not appeal the denial of this request or rely on any aspect of the Marsden hearing.

^[3] The subsequent readiness conference was held on July 12th. The minutes of the conference indicate that the preliminary hearing date remained scheduled for July 14; the minutes do not reflect anything of significance as having occurred at the conference.

^[4] The parties agree that this pronouncement, which is mistakenly attributed to Munoz in the transcript, was actually made by the trial court.

^[5] Byoune is also distinguishable by the fact that the defendant in that case was ultimately convicted on the charges added by the prosecution at the time of the continuance request, whereas here, the amendments to the information (an additional attempted robbery charge, and criminal street gang enhancements under § 186.22, subdivision (b)(1)), resulted in neither a conviction nor an increased sentence for Munoz. (Byoune, supra, 65 Cal.2d at pp. 346-347 & fn. 1.)

^[6] Section 422 provides that "[a]ny person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment . . . ."

^[7] The record does not support Munoz's assertion that Pike testified that at the time of the threat he "was no longer afraid of [Munoz]." Pike repeatedly testified on direct and cross-examination that Munoz's threat placed him in fear. The only arguable exception was that on cross-examination Pike acknowledged that at the preliminary hearing he answered "yes and no" when asked whether he feared Munoz. He explained that what he meant in his earlier testimony was that he was not afraid to the extent he "could keep [his] distance from [Munoz]." As " 'any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses,' " this asserted inconsistency is not a valid basis for Munoz's challenge. (People v. Breault (1990) 223 Cal.App.3d 125, 140.)

^[8] Both parties agree that for purposes of the sentencing, we must assume that the jury's conviction on count 5 was based on the second assault, which occurred after Munoz returned to the scene with the butcher knife. We also note that Munoz erroneously refers to the offenses in question as counts 6 and 7. It is clear from the substance of his argument that he is referring to counts 5 and 7.

^[9] Section 654 states: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."

^[10] Given the "broad latitude" enjoyed by trial courts on this question (Hutchins, supra, 90 Cal.App.4th at p. 1312), we cannot, as Munoz requests, conclude on this record that the trial court was prohibited under section 654 from imposing sentence on count 7 as a matter of law.