1

Filed 9/10/21

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL SCOTT BAREFIELD,

Defendant and Appellant.

C089464

(Super. Ct. No. 17FE017280)

APPEAL from a judgment of the Superior Court of Sacramento County, 

Matthew J. Gary, Judge. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Timothy L. 

O’Hair, Deputy Attorney General, for Plaintiff and Respondent.

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of parts II, III, IV, V, and VI of the Discussion.
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Defendant Michael Scott Barefield appeals from his convictions of corporal 

injury, assault with a deadly weapon, and false imprisonment arising from his attack 

against a former girlfriend. He claims the trial court erred by: (1) admitting evidence in 

violation of the marital testimony privilege; (2) admitting propensity evidence; (3) 

admitting fresh complaint evidence; (4) not staying his sentence on the false 

imprisonment count; and (5) using the firearm possession to impose the upper-term 

sentence on the assault count and a firearm enhancement.

Although the court admitted evidence in violation of the marital privilege, the 

error was harmless. We affirm the judgment.

FACTS AND HISTORY OF THE PROCEEDINGS

June 9-10, 2017 attack

Hazel Doe and defendant started dating in 2013. They lived together, but she 

moved out multiple times, moving out for the last time in January 2016. They had a 

child. By June 2017, Hazel was dating another person, but she and defendant had 

discussed reconciling. 

On June 6, 2017, Hazel and defendant had consensual sex at defendant’s 

residence. The following day, Hazel told defendant she had feelings for someone else. 

On June 9, 2017, defendant invited Hazel to go out for a drink. They met at a bar, 

had drinks, and watched a basketball game. After the game, defendant asked her to go to 

dinner with him. She declined the invitation; she wanted to be home with her daughter 

who had not been feeling well. 

Hazel arrived home around 9:00 or 10:00 p.m. As she opened the front door to her 

residence, defendant rushed up behind her. He told her he wanted to have dinner with 

her, but she reminded him that she needed to be home. Defendant followed her inside 

and continued to ask her to go to dinner. Defendant’s demeanor had changed and it 

frightened Hazel, but she “begrudgingly agreed” to go to dinner to avoid a physical 
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confrontation in her home. She and defendant had engaged in physical confrontations in 

the past. 

Defendant drove them to a drive-through Mexican restaurant near his apartment. 

While in the drive-through lane, defendant got out of the car and walked to a nearby 

liquor store to buy alcohol. Hazel got into the driver’s seat and continued through the 

drive-through. 

Hazel drove them to defendant’s apartment. They arrived at around 11:00 or

11:15 p.m. They went into his kitchen, unwrapped their food, and began eating. Hazel 

had not wanted to go that far from her house, so she took a few bites and then asked 

defendant to take her home. Defendant eventually agreed. 

As Hazel gathered her belongings, defendant walked up to her and tried to kiss 

her. She pulled away and said she really needed to go. He continued trying to kiss her 

and she continued moving away and saying she needed to go. During this banter, the two 

shifted positions. Defendant was closer to the front door and had his back to it; Hazel 

was closer to the hallway with her back toward the hallway and bedrooms. 

Defendant used his body to back Hazel into the bedroom. She tried to maneuver 

around him and said she did not want to “do this now.” He backed her up to the bed, and 

she fell backwards onto it. He fell on top of her and grabbed her clothes. She continued 

telling him to stop and that she needed to leave, but he became more aggressive. He 

placed his forearm on her collar bone to hold her down and tried to take her clothes off 

with the other hand. She told him he was hurting her, and she tried to shove him off. 

The more she fought, the more his forearm grip tightened. She stopped resisting, as it 

was making things worse. Defendant had sex with her. He talked during the act and was 

“coercing [her] to kind of get into it[.]” She “just laid there” and “wasn’t responding at 

all.” After he finished, he started to get dressed, and he told Hazel to get dressed. 

At this point, defendant’s demeanor “totally changed[.]” As Hazel dressed, he 

started yelling at her. He called her a whore and accused her of prostituting herself with 
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the man she was dating. Rambling, he said she embarrassed him, everyone knew what 

she was doing. Hazel was confused because she did not know what he was talking about. 

The more he yelled, the more excited he became, and the more afraid Hazel became. 

As she bent over to put on her shoes, defendant swung at her and hit her on her 

right cheek. She spun around, and defendant, still yelling at her, hit her again. She tried 

to strike back with a toy, but he blocked it. He hit her with “an onslaught of punches,”

punching her “repeatedly.” She tried to defend herself and hit back, but he grabbed her 

and shoved her onto the bed. As she sat up, she saw defendant reach into the top of a 

closet. Hazel heard a click, and when defendant turned around, he pointed a handgun at 

her head. 

Defendant hit her with the gun across the right side of her face. She put up her 

arms to protect herself, but he repeatedly hit her with the gun “over, and over, and over 

again.” She fell to the floor, and defendant kicked her “multiple times” in her back, 

stomach, and ribs. About four or five times, defendant left the room and returned with a 

beer, hitting her each time. He stopped yelling, and at one point he said to her, “I see you 

looking at the gun. I’m not going to shoot yo stupid ass.” He dropped the clip out of the 

gun, hit her with the gun again, put the gun in his pocket, and continued to hit her with 

his hand. 

When defendant eventually went to the bathroom, Hazel grabbed her keys and 

phone, and she ran out of the apartment. She forgot to take her purse. She hid in some 

bushes on the opposite side of defendant’s apartment building. She heard defendant 

come out the door, walk around a bit, walk back to his apartment, and close the door. 

Defendant had kept her at his apartment against her will from the moment she wanted to 

leave for an hour and 15 minutes. She called 911. 

While waiting for police to arrive, around 1:30 a.m. Hazel began exchanging text 

messages with a friend, L.T., and asked her to call the police. L.T. called Hazel, but 

Hazel responded, “I can’t answer.” In one of her messages to L.T., Hazel stated that 
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defendant pulled a gun on her and pistol whipped her. L.T. called 911 several times. 

Shortly after 2:30 a.m., L.T. and her boyfriend picked Hazel up outside defendant’s 

apartment. She had one shoe on. She got into the back seat and slumped over. She was 

upset, holding her head, and crying. They drove her home. 

Hazel drove herself to the hospital. When she arrived, she called her ex-husband, 

Maurice Wheatley, to meet her there. She told him that defendant had attacked her and 

struck her with a gun. 

Hazel told the hospital doctor that she had been physically attacked by a gun and 

the assailant’s hands and feet. She did not tell the doctor that she had been sexually 

assaulted because she was still shaken up and there were others in the room. She hoped 

to have a private conversation later with the doctor, but that did not occur. Later that day, 

she told L.T. about the sexual assault. 

Hazel suffered swelling, scrapes, and bruising on her arm, face, back, shoulder, 

finger, head, and around her eye. Photos of her injuries were shown to the jury. At trial, 

she had a scar on her right arm and another across the right side of her face from the 

pistol whipping. 

Around 9:00 a.m. June 10, M.W. called Hazel. M.W. was defendant’s legal wife,

and Hazel was friendly with her. M.W. told Hazel that defendant had asked her to return 

Hazel’s purse but also to ask Hazel for his gun back. Hazel told M.W. she did not have 

defendant’s gun; defendant had pistol whipped her, kicked her, punched her, and forced 

her to have sex with him. M.W. said she believed Hazel because outside of the gun, she 

had had the same experience. 

Hazel testified of other incidents when defendant physically abused her. 

Sometime in 2015, defendant and she got into an argument, and he shoved her and 

pushed her face into a couch. Defendant had been drinking. 

On one occasion, she and defendant were at a bar and had been drinking heavily. 

He became angry over her not noticing certain people that came into the bar. When they 
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got home, defendant hit Hazel twice in the face with his fist. He went into the garage, 

and she locked the door behind him. He broke the door off its hinges. 

On another occasion, defendant grabbed Hazel by her shirt and pushed her against 

the wall. He put his hands around her throat and said, “[Y]ou think I’m playing with 

you? I’ll F you up.” 

Another incident occurred in July 2016 after defendant and Hazel had stopped 

dating. After attending a funeral, they went back to his family’s house. Defendant left 

the house for three to four hours, leaving Hazel and their baby there with no 

transportation. When defendant returned, he was heavily intoxicated. Hazel and 

defendant got into a shouting match that turned into “an all out fist fight” while she was 

holding the baby in her arms. 

Other evidence

The trial court admitted evidence of uncharged acts of violence defendant had 

committed against M.W. and L.W. We discuss this evidence below.

The prosecution also presented expert testimony regarding domestic violence. 

Defendant testified on his own behalf. 

Verdict and sentence

The jury convicted defendant of inflicting corporal injury on the parent of 

defendant’s child, assault with a semiautomatic firearm, and false imprisonment by 

violence, menace, fraud, and deceit. (Pen. Code, §§ 273.5, subd. (a); 245, subd. (b); 236; 

237, subd. (a).) (Statutory section citations that follow are to the Penal Code.) The jury 

also found true personal firearm use enhancement allegations on the assault and false 

imprisonment counts. (§ 12022.5, subds. (a), (b).) The jury hung on a count of rape by 

force, and the court declared a mistrial on that count. (§ 261, subd. (a)(2).) 

The trial court sentenced defendant to an aggregate prison term of 19 years, 8 

months, calculated as follows: the upper term of nine years for the assault plus 10 years 
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for the firearm enhancement, and a consecutive eight months (one-third the mid-term) for 

false imprisonment. The court imposed and stayed sentencing on the corporal injury 

count under section 654. 

DISCUSSION

I

Evidence Subject to the Marital Privilege

Defendant contends the trial court erred when it denied M.W.’s assertion of the 

marital testimony privilege and admitted her testimony of uncharged acts of abuse 

defendant had committed against her. It also erred in admitting Hazel’s complaint of the 

offense to M.W. on the phone. Although their divorce had been pending for years, 

defendant and M.W. were still legally married at the time of trial, and there is no 

exception to the marital privilege if the marriage is nonviable. We agree the trial court 

erred.

A. Background

Defendant and M.W. were married in 2004. They had two children together. 

They separated in 2007, and they reunited and separated several times after that. In 2009, 

defendant filed dissolution papers, but the divorce was not final by the time of trial in 

2018 due to filing difficulties. The two have not lived together since 2010. 

The prosecution moved to admit defendant’s prior uncharged acts of domestic 

violence against M.W. M.W. asserted the marital privilege not to testify against 

defendant. (Evid. Code, § 970.) The trial court found there was no marital privilege. 

Relying on California family law’s use of the date of separation as the demarcation for 

determining divorcing spouses’ community and separate property, the court determined 

that the right to the marital privilege ended when the parties separated, even though they 

were still legally married. (See Fam. Code, §§ 771, 70.) 
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As a result, M.W. testified to four incidents of physical abuse by defendant against 

her. On February 26, 2009, defendant questioned M.W. in his car about one of her male 

friends. He hit M.W. in the face. M.W. swung back and kicked him. She tried to get out 

of the car, but he locked the doors and drove off. She repeatedly asked to get out of the 

car, but he drove her to his house and made her talk with him there. 

On March 17, 2009, defendant slapped M.W., and she grabbed him by the hair and 

pulled him to the ground. They let each other get up, but defendant took her phone and 

her purse. As she walked home, defendant turned around and pulled up in his car. When 

he got out, he started hitting her. She again pulled him by his hair to the ground as he 

continued hitting her. They let each other up and went to his home. Defendant let her 

leave around 7:00 a.m. 

On the evening of June 26, 2010, defendant and M.W. were at a club celebrating 

her birthday with her sister, her sister’s husband, and others. After becoming agitated 

with someone at the club, defendant drove the group to M.W.’s sister’s house. He drove 

erratically, almost crashing into a wall and other cars. At her sister’s house, M.W. tried 

to open her door to get out of the car, but defendant pulled it shut. Once she got out, 

defendant grabbed her by her arms so hard they both fell to the ground. She kicked him 

hard enough that he fell off of her. He got into his car and drove off. M.W. got into her 

sister’s car, and as they drove off, defendant pulled up and cut them off. Her sister put 

the car in reverse, but defendant ran up, grabbed the mirror, and yelled at M.W. to get 

out. Her sister slowed down, and defendant got off the car. M.W. called 911. 

On March 17, 2012, M.W. met defendant at a bar he owned. While she was there, 

defendant told someone she was his wife and she was cheating on him. This made her 

feel uncomfortable because they had been separated for years, so she left. Defendant 

chased after her and pushed her. She pushed back and they both began punching each 

other. She ran off to get away from him, but he found her and told her to get into his car. 

She was lost, so she got in. She wanted to go home, but he took her to his house. They 
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argued, but eventually they had sex. She did not want to have sex with him, but she did 

not object because she just wanted the night to be over. 

In addition to relating defendant’s prior acts, M.W. testified under the fresh 

complaint doctrine, over defendant’s objection, about Hazel’s statement to her during 

their phone call. M.W. stated that defendant contacted her on June 10, 2017. He asked 

her to return Hazel’s purse. He also asked her to ask Hazel for his gun back. He said 

Hazel had taken his gun the night prior. Defendant came by M.W.’s home and gave her 

the purse. M.W. then called Hazel to let her know she was on her way to Hazel’s house. 

Hazel said she was not home, but M.W. could still drop the purse off. Hazel also told her 

what had happened. She and defendant had a physical alteration, and she fled the house 

without her bag. She said defendant held her against her will, hit her several times, 

forced her to have sex with him, and that a gun was involved. M.W. said that Hazel 

sounded upset. It did not sound to M.W. that Hazel was making it up. 

B. Analysis

Defendant contends the trial court erred when it ruled that the marital testimony 

privilege did not apply to M.W. and ordered her to testify. The privilege is given to 

“married person[s],” and defendant and M.W., though separated, were still legally 

married. (Evid. Code, § 970.) Defendant argues that the trial court’s use of family law to 

hold that the marriage privilege did not apply because they were separated violated the 

clear and express terms of the statutory privilege and wrongfully created an exception to

the privilege. 

In California, no person has a privilege to refuse to be a witness except as 

otherwise provided by statute. (Evid. Code, § 911, subd. (a).) All evidentiary privileges 

are statutory. (People v. Sinohui (2002) 28 Cal.4th 205, 211 (Sinohui).) We thus 

interpret them by applying the rules of statutory construction. (Id. at pp. 211-212.)
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“ ‘When we interpret a statute, “[o]ur fundamental task . . . is to determine the 

Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory 

language, giving it a plain and commonsense meaning. We do not examine that language 

in isolation, but in the context of the statutory framework as a whole in order to 

determine its scope and purpose and to harmonize the various parts of the enactment. If 

the language is clear, courts must generally follow its plain meaning unless a literal 

interpretation would result in absurd consequences the Legislature did not intend. If the 

statutory language permits more than one reasonable interpretation, courts may consider 

other aids, such as the statute’s purpose, legislative history, and public policy.” 

[Citation.] “Furthermore, we consider portions of a statute in the context of the entire 

statute and the statutory scheme of which it is a part, giving significance to every word, 

phrase, sentence, and part of an act in pursuance of the legislative purpose.” ’ (Sierra 

Club v. Superior Court (2013) 57 Cal.4th 157, 165-166.)” (City of San Jose v. Superior 

Court (2017) 2 Cal.5th 608, 616-617.)

In addition to the rules of statutory construction, we are guided by rules governing 

evidentiary privileges. (Sinohui, supra, 28 Cal.4th at p. 212.) “Because privileges 

‘prevent the admission of relevant and otherwise admissible evidence,’ they ‘should be 

narrowly construed.’ (People v. McGraw (1983) 141 Cal.App.3d 618, 622 [].) Applying 

this maxim in the marital privileges context, our courts have broadly construed the 

exceptions to these privileges.” (Sinohui, supra, 28 Cal.4th at p. 212.)

However, judicial construction of evidentiary privileges is nonetheless restricted. 

“The privileges set out in the Evidence Code are legislative creations; the courts of this 

state have no power to expand them or to recognize implied exceptions.” (Wells Fargo 

Bank v. Superior Court (2000) 22 Cal.4th 201, 206, italics added.) An evidentiary 

privilege “is a legislative creation, which courts have no power to limit by recognizing 

implied exceptions.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 

739.) The area of privileges “is one of the few instances where the Evidence Code 
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precludes the courts from elaborating upon the statutory scheme.” (Cal. Law Revision 

Com. com., West’s Ann. Cal. Evid. Code, foll. § 911.)

Evidence Code section 970 codifies the marital testimony privilege. It states, 

“Except as otherwise provided by statute, a married person has a privilege not to testify 

against his [or her] spouse in any proceeding.” A married person also has a privilege not 

to be called as a witness in any proceeding to which his or her spouse is a party. (Evid. 

Code, § 971.) The Legislature codified exceptions to the privilege in Evidence Code 

section 972. For example, an exception to the privilege exists for a criminal proceeding 

in which one spouse is charged with a crime against the person or property of another 

spouse or a crime against the person or property of a third person committed in the course 

of committing a crime against the person or property of the other spouse. (Evid. Code, 

§ 972, subd. (e).) That exception does not apply in this matter. However, statutory 

exceptions to the privilege do not include the spouses’ separation prior to dissolution or 

for the marriage becoming nonviable. “The purpose of the spousal testimony privilege is 

to preserve marital harmony.” (People v. Sinohui, supra, 28 Cal.4th at p. 213.) 

Jurisdictions that recognize some form of this privilege “do so because the privilege 

allegedly ‘ “preserve[s] marital harmony,” ’ ‘ “protect[s] marital privacy,” ’ and 

‘ “promote[s] the socially beneficial institution of marriage.” ’ [Citation.]” (Id. at 

p. 211.) “The rationale of the privilege provided by Section 970 not to testify against 

one’s spouse is that such testimony would seriously disturb or disrupt the marital 

relationship. Society stands to lose more from such disruption than it stands to gain from 

the testimony which would be available if the privilege did not exist.” (Cal. Law 

Revision Com. com., West’s Ann. Cal. Evid. Code, foll. § 970.)

The marital privilege is available until the marriage is dissolved by a final

judgment of dissolution even though the marriage became nonviable years before. 

(Jurcoane v. Superior Court (2001) 93 Cal.App.4th 886, 900 (Jurcoane).) The privilege

is not available after the marital relationship is terminated by divorce. (People v. Dorsey
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(1975) 46 Cal.App.3d 706, 716-717.) But if a final decree of divorce has not been 

obtained, the testifying spouse may claim a privilege not to be a witness. (Id. at p. 717.)

Jurcoane addressed the issue raised here. In Jurcoane, the court of appeal held 

that the marital privilege applied even if the couple had been separated for many years

but the marriage had not been formally dissolved. There, the husband fled the country

after he was charged with murder. The husband and wife never divorced, but they had no 

contact with each other for 17 years. During that time, the husband assumed a false 

name, claimed Mexican citizenship, resumed his work as an auto mechanic, and lived 

with a Mexican woman. He never provided economic assistance to his wife. After his 

extradition, the wife asserted the marital privilege not to testify at the husband’s 

preliminary hearing. (Id., supra, 93 Cal.App.4th at pp. 889-891.) 

The court of appeal held that the wife’s assertion of the privilege was lawful. The 

issue was one of statutory interpretation subject to the court’s lack of authority to imply 

the existence of exceptions to the privilege. Evidence Code section 970 granted the 

privilege unambiguously to “married persons.” The Legislature had defined how a legal 

marriage was brought into being, and it had “defined how marriages can be dissolved: 

‘Marriage is dissolved only by one of the following: [¶] (a) The death of one of the 

parties. [¶] (b) A judgment of dissolution of marriage. [¶] (c) A judgment of nullity of 

marriage.’ (Fam. Code, § 310, italics added.)” (Jurcoane, supra, 93 Cal.App.4th at 

p. 896.) “[T]he statutes defining the marital testimonial privilege facially do not include 

a proposed exception to the privilege where a still legally intact marriage is ‘moribund,’ 

‘abandoned,’ or ‘no longer viable[,]’ ” and the court had no authority to imply the 

existence of such an exception to the privilege. (Id. at p. 897.) Because the wife was a 

married person at the time of the hearing, her claim of marital privilege was lawful even 

though she had not seen her husband for 17 years. (Id. at p. 900.)

Jurcoane’s reasoning applies here. The evidence is undisputed that defendant’s 

marriage to M.W. is no longer viable. However, the marriage had yet to be terminated by 
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a final judgment of dissolution. Because the statutory language of the marital privilege 

and its exceptions is clear, and because we have no authority to imply the existence of an 

additional exception to the privilege, we must hold that M.W.’s claim of marital privilege 

was lawful.

The Attorney General contends we should not follow Jurcoane for a number of 

reasons. He argues that contrary to Jurcoane’s holding, the terms “married persons” or 

“spouses” as used in the privilege statute are not facially clear. He claims that looking at 

the terms, one cannot tell whether they include such relationships as bigamous or 

polygamous marriages, common law marriages from other states, domestic partnerships, 

putative spouses, or cohabitants. 

The Attorney General’s concerns are unfounded. Case authority has made clear 

who “married persons” are for purposes of the marital privilege. If a defendant’s 

marriage is illegal and void, the defendant’s purported spouse has no right to assert the 

marital privilege. (See People v. Gallego (1990) 52 Cal.3d 115, 176-177.) For example, 

the privilege does not exist in a bigamous marriage, an incestuous marriage, or in a 

marriage entered into solely for fraudulent purposes. (Ibid. [bigamous]; People v. 

MacDonald (1938) 24 Cal.App.2d 702, 704-707 [incestuous]; Lutwak v. United States

(1953) 344 U.S. 604, 614 [97 L.Ed. 593] [sham marriage].) The marital privilege also 

does not extend to unmarried cohabitants. (People v. Delph (1979) 94 Cal.App.3d 411, 

415-416.) And a putative spouse by definition is not a party to a valid marriage. (Fam. 

Code, § 2251, subd. (a).)

On the other hand, California recognizes the validity of a common law marriage 

contracted in another state which would be valid under the laws of that state. (Knight v. 

Superior Court (2005) 128 Cal.App.4th 14, 19.) And registered domestic partners “have 

the same rights, protections, and benefits,” and are “subject to the same responsibilities, 

obligations, and duties under law,” whether those rights and duties are derived from 

“statutes, administrative regulations, court rules, government policies, common law, or 
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any other provisions or sources of law, as are granted to and imposed upon spouses.” 

(Fam. Code, § 297.5, subd. (a).) Arguably, common law spouses and domestic partners 

would be entitled to exercise the marital privilege. The Attorney General’s argument 

does not establish that the terms “married persons” and “spouses” in Evidence Code 

section 970 are not clear or are ambiguous.

The Attorney General argues that even if the terms “married persons” and 

“spouse” are clear and unequivocal, the “plain meaning” rule does not prevent us from 

determining whether the literal meaning of the statute comports with its purpose. Under 

California School Employees Assn. v. Governing Bd. (1994) 8 Cal.4th 333 (California 

School Employees Assn.), courts will not follow the plain meaning of statutory language 

when to do so would frustrate the manifest purposes of the legislation as a whole or lead 

to absurd results. (Id. at p. 340.) “If the [statutory] language is clear, courts must 

generally follow its plain meaning unless a literal interpretation would result in absurd 

consequences the Legislature did not intend.” (City of San Jose v. Superior Court, supra, 

2 Cal.5th at p. 616.)

The Attorney General claims that allowing the privilege here would lead to absurd 

results. Relying on the privilege’s statutory language where a couple is all but officially 

divorced defeats the privilege’s purpose. When the parties have factually severed the 

relationship, little reason exists to protect marital harmony. Privileges “are looked upon 

with disfavor” because “granting of a claim of privilege can serve only to ‘shut out the 

light[.]’ ” (People v. Delph, supra, 94 Cal.App.3d at p. 415, quoting McCormick on 

Evidence (2nd ed. 1972), § 77, p. 156.) Applying the privilege here where there is no 

marital relationship to protect, unnecessarily excludes evidence where no private interest 

is at stake. The Attorney General contends that we should interpret the marital privilege 

narrowly—or more narrowly than the meaning of its clear language—so that it is limited 

to the Legislature’s intended purposes. That is, according to the Attorney General, the 
15

marital privilege should apply only when it serves to protect marital harmony and open 

communication between spouses. 

The Attorney General further argues that the trial court’s reliance on California 

family law’s use of the date of separation was a reasonable basis to determine when the 

privilege will no longer further its legislative purpose. The trial court based its ruling that 

the privilege did not apply on the demarcation provided by the Family Code for 

determining a divorcing couple’s community and separate property. Family Code section 

771 declares that the earnings and accumulations of a spouse after the “date of 

separation” are the separate property of that spouse. (Fam. Code, § 771, subd. (a).) 

Family Code section 70 defines the “date of separation” as “the date that a complete and 

final break in the marital relationship has occurred, as evidenced by both of the 

following: (1) The spouse has expressed to the other spouse the intent to end the 

marriage[; and] (2) The conduct of the spouse is consistent with the intent to end the 

marriage.” (Fam. Code, § 70, subd. (a).) The Attorney General argues the date of

separation so defined is a reasonable basis for determining when the purposes of the 

marital privilege—promoting marital harmony—are no longer served. 

The Attorney General’s policy argument may have merit. However, as already 

stated, the Legislature and the California Supreme Court have restricted our authority to 

construct an evidentiary privilege beyond its unambiguous terms. California courts “do 

not enjoy the freedom to restrict California’s [evidentiary privileges] based on notions of 

policy or ad hoc justification.” (Wells Fargo Bank v. Superior Court, supra, 22 Cal.4th at 

p. 209.) “[W]e have no power to create such exceptions.” (Id. at p. 208.) We are aware 

of no published opinion where a California appellate court construing an evidentiary 

privilege has implied the existence of an exception to the privilege by exercising its 

authority recognized in California School Employees Assn. not to follow the plain 

meaning of the privilege’s statutory language where doing so would result in absurd 

consequences the Legislature did not intend. 
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The Attorney General cites People v. Gomez (1982) 134 Cal.App.3d 874 to 

suggest that courts are amenable to the argument. The defendant there pursuant to 

Evidence Code section 980 sought to exclude from evidence threatening statements he 

made to his estranged spouse. Evidence Code section 980 privileges confidential 

communications between spouses. The trial court ruled the evidence was admissible, as 

the threats were made in the presence of others and were not confidential. The court of 

appeal affirmed on that basis. (Id. at p. 879.)

However, before reaching its decision, the court stated it was “leav[ing] aside the 

issue whether the privilege was intended to apply to communications made after a couple 

has separated but before the legal dissolution of the marriage is final.” (People v. Gomez, 

supra, 134 Cal.App.3d. at p. 879.) In a footnote, the court stated, “The purpose of the 

privilege is to encourage free and open communication between spouses. (See Evid. 

Code, § 980, [C]omment, Law Revision Com[mission].) Once the parties have factually 

severed the relationship, little reason exists to protect the couple’s communications or to 

extend a privilege to a confidential relationship that no longer exists.” (Id. at p. 879, 

fn. 1.)

The court of appeal’s statement is dicta and has no precedential value. The court 

also made no mention of the restrictions the Legislature and the Supreme Court have 

placed on our authority to imply an exception to an evidentiary privilege. Again, 

exceptions to the privilege are limited to those adopted by the Legislature. (Wells Fargo 

Bank v. Superior Court, supra, 22 Cal.4th at p. 206.) Given the statutory nature of 

privileges and their exceptions, if the Legislature had intended to terminate the marital 

privilege upon a married couple’s separation, it could have adopted such a provision

similar to Family Code section 70. The omission of such an exception indicates the 

Legislature did not intend for the privilege to end upon separation prior to divorce. (See 

id. at p. 207 [“If the Legislature had intended to restrict [the attorney-client privilege], it 
17

would likely have declared that intention unmistakably, rather than leaving it to courts to 

find the restriction by inference . . . .”].)

We also are not convinced that granting the privilege in this instance results in 

absurd consequences the Legislature did not intend. At trial, M.W. testified that she did 

not want to be in court testifying against defendant. She was trying to coexist with 

defendant in order to raise their children. The Legislature could rationally believe that 

protecting estranged spouses from testifying against each other as they attempt to coparent their children ‘ “promote[s] the socially beneficial institution of marriage” ’ and 

protects society from the harm further disruption to their relationship may cause. (People 

v. Sinohui, supra, 28 Cal.4th at p. 211; Cal. Law Revision Com. com., West’s Ann. Cal. 

Evid. Code, foll. § 970.)

We thus hold the trial court erred when it denied M.W.’s assertion of the marital 

testimonial privilege and ordered her to testify. We will determine whether the error was 

prejudicial after considering defendant’s other evidentiary arguments.

II

Admission of Propensity Evidence

Defendant claims the trial court erred by admitting evidence of his uncharged acts 

of abuse against M.W. and another former girlfriend, L.W., pursuant to Evidence Code 

sections 1109 and 1101, subdivision (b). We have already described M.W.’s testimony 

of defendant’s prior acts and determined the court erred by admitting M.W.’s testimony. 

But we conclude the trial court did not err in admitting L.W.’s testimony under Evidence 

Code section 1109 (section 1109), and we do not reach defendant’s arguments under 

Evidence Code section 1101 (section 1101).
18

A. Background

The prosecutor sought to introduce evidence of an uncharged act defendant 

committed against L.W. under section 1109. Defense counsel objected that admitting the 

evidence would be unduly prejudicial under Evidence Code section 352 (section 352). 

Counsel claimed that L.W. instigated the incident. He argued that admitting her 

testimony would be “a mini trial within a trial,” consuming an undue amount of the 

court’s time, as counsel would take a day to call three to four witnesses to testify 

concerning the incident. The prosecutor argued that L.W.’s testimony would take no 

more than 30 minutes of the trial, and its probative value of showing defendant’s 

propensity to commit domestic violence outweighed any prejudicial effect. 

The trial court granted the prosecution’s request. Applying the test of undue 

prejudice from section 352, the court found the evidence’s probative value was high 

“given the nature of the charges and the allegations that are being made.” It also found 

that the evidence’s probative value was not substantially outweighed by the consumption 

of time needed to present it. Even if defense counsel called three or four witnesses to 

rebut the testimony, those witnesses would not consume an undue amount of time given 

the trial’s anticipated length. 

At trial, L.W. testified that she and defendant lived together for two or three 

months in 2012. They have a child. On the evening of September 8, 2013, L.W. dropped 

their then seven-month old baby off at defendant’s house for defendant to watch while 

she ran errands. When she returned at approximately 11:00 p.m., there were five or six 

other people there. People were drinking alcohol. She smelled marijuana. This angered 

L.W. as she had wanted defendant to spend time with the baby. Inside, the baby was in a 

jumper that clamped onto a door opening. Defendant’s 11-year-old daughter was in a 

back room by herself. 
19

L.W. went “ballistic” because defendant had people over instead of watching his 

child. She and defendant began arguing and yelling. Defendant had the baby in his 

hands. Yelling at each other, they walked toward her car with defendant’s daughter. 

L.W. yelled at defendant to hand over the baby. Defendant yelled at L.W. to “just 

fucking leave” multiple times and cussed at her by calling her out of control and words to 

that effect. Someone took the baby from defendant and he and L.W. fought. She hit him 

and “something” hit her mouth, but she did not know which happened first. On rebuttal, 

L.W. said defendant hit her and “got” her in her teeth. This was the first time defendant 

“put hands” on her. 

Detective Shaun McGovern investigated the incident. L.W. told him that as she 

was yelling at defendant to hand over the baby, defendant hit her with an open hand in 

her forehead, and then she was hit again by something hard in her teeth. She said she did 

not strike defendant before he hit her. The detective arrested defendant for domestic 

violence. Upon his arrest, defendant admitted that he had been arrested once for 

assaulting T.G., the mother of his 11-year-old daughter. 

B. Analysis

Generally, evidence of specific instances of a defendant’s prior conduct is 

inadmissible to prove his conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) 

Section 1109 provides an exception to the general rule against propensity evidence. 

Under that statute, “in a criminal action in which the defendant is accused of an offense 

involving domestic violence, evidence of the defendant’s commission of other domestic 

violence is not made inadmissible by Section 1101 if the evidence is not inadmissible 

pursuant to Section 352” and the prior acts occurred no more than 10 years before the 

charged offense. (Evid. Code, § 1109, subds. (a)(1), (e).) 

Defendant claims the trial court erred in admitting evidence of his altercation with 

L.W. under section 1109 because the evidence was unduly prejudicial under section 352. 
20

He argues that the evidence was not sufficiently probative. It had little reason to prove he 

assaulted Hazel because different victims were involved in different circumstances. He 

also claims the evidence was unduly prejudicial because it would lead the jury to punish 

him for his prior misdeeds rather than judge his guilt in the charged offenses. Introducing 

the evidence also took an undue amount of trial time. 

“Generally, we review a trial court’s decision to admit or exclude evidence for an 

abuse of discretion. (People v. Herrera (2016) 247 Cal.App.4th 467, 475.) An abuse of 

discretion occurs when a court makes a decision in an ‘arbitrary, capricious or patently 

absurd manner that resulted in a manifest miscarriage of justice.’ (People v. Jordan

(1986) 42 Cal.3d 308, 316.) In other words, the decision ‘ “ ‘exceed[ed] the bounds of 

reason, all of the circumstances before it being considered’ ” [citation] or its decision 

[was] “so irrational or arbitrary that no reasonable person could agree with it.” ’ (Wade v. 

Superior Court (2019) 33 Cal.App.5th 694, 708.)” (People v. Thomas (2021) 

63 Cal.App.5th 612, 626.)

“Section 352, which section 1109 ‘expressly incorporates’ (People v. Kerley

(2018) 23 Cal.App.5th 513, 532), gives the trial court discretion to exclude or admit 

evidence of past domestic violence after the court weighs the probative value of the 

evidence against ‘the probability that its admission will (a) necessitate undue 

consumption of time or (b) create substantial danger of undue prejudice, of confusing the 

issues, or of misleading the jury’ (§ 352). The law requires ‘ “the probative value of the 

evidence must be balanced against four factors: (1) the inflammatory nature of the 

uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of 

the uncharged offenses; and (4) the amount of time involved in introducing and refuting 

the evidence of uncharged offenses.” ’ (People v. Culbert [(2013)] 218 Cal.App.4th 

184,] 192.) ‘ “The principal factor affecting the probative value of an uncharged act is its 

similarity to the charged offense.” ’ (People v. Hollie (2010) 180 Cal.App.4th 1262, 

1274.)” (People v. Thomas, supra, 63 Cal.App.5th at p. 630.)
21

The trial court did not abuse its discretion when it determined that admitting 

L.W.’s testimony under section 1109 was not unduly prejudicial under section 352. The 

evidence was probative. It tended to show that defendant assaulted women with whom 

he had intimate relationships. In both instances, defendant yelled at the victims, called 

them derogative names, and hit them in the face. 

It is also not likely the jury found him guilty of assaulting Hazel as punishment for 

his assault of L.W. “ ‘ “The ‘prejudice’ referred to in Evidence Code section 352 applies 

to evidence which uniquely tends to evoke an emotional bias against the defendant as an 

individual and which has very little effect on the issues. In applying section 352, 

‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citation.]’ (People v. Karis (1988) 

46 Cal.3d 612, 638.)” (People v. Scott (2011) 52 Cal.4th 452, 491.) Defendant’s assault 

against L.W. was not as severe or as emotionally troubling as his attack on Hazel.

Further, admission of the evidence did not consume an undue amount of time. 

Defendant claims the evidence required an excessive amount of trial time because it takes 

up 41 pages of the reporter’s transcript. Forty-one pages is a small fraction of the more 

than 1,100 pages of the reporter’s transcript, of which more than 700 pages recorded the 

taking of testimony before the jury. 

The evidence indicates that the trial court did not abuse its discretion when it 

admitted testimony of defendant’s assault of L.W. under section 1109.

III

Admission of Fresh Complaint Evidence

Defendant claims the trial court erred when it admitted Hazel’s “fresh complaint” 

statements to her ex-husband, Maurice Wheatley, and to M.W. explaining what had 

happened during the attack. It assertedly erred because the evidence was used for the 

truth of the matter asserted and because of the length of time that elapsed between the 

attack and when Hazel made the statements. We have already determined it was error to 
22

admit the testimony from M.W., but the court did not err in admitting fresh complaint 

evidence from Wheatley.

A. Background

The trial court granted the prosecution’s requests to introduce as “fresh complaint” 

evidence Hazel’s statements to Wheatly and M.W. that defendant had assaulted her. 

Wheatley testified that he received a call from Hazel at approximately 3:00 a.m.

on June 10, 2017. She was at the hospital. She told Wheatley that defendant had pistol 

whipped her and held her hostage. Wheatley went to the hospital and asked Hazel what 

had happened. She told him that defendant was drinking and talking crazy, and that he 

held her hostage and hit her with a gun. 

After a medical test, Hazel said to Wheatley, “[H]e, you know.” Wheatley said, 

“[H]e took it.” Hazel responded, “[Y]eah, he took it.” Wheatley explained that “taking” 

meant “[h]er sexuality, just taking it.” 

Wheatley spoke with Hazel later that day. Hazel described the incident to him, 

explaining that the argument turned into defendant pulling out a gun. Defendant sexually 

assaulted her and pistol whipped her. He was also hitting her on her side. 

B. Analysis

“[P]roof of an extrajudicial complaint, made by the victim of a sexual offense, 

disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—

namely, to establish the fact of, and the circumstances surrounding, the victim’s 

disclosure of the assault to others—whenever the fact that the disclosure was made and 

the circumstances under which it was made are relevant to the trier of fact’s 

determination as to whether the offense occurred.” (People v. Brown (1994) 8 Cal.4th 

746, 749-750.) 

The fresh complaint doctrine is not an exception to the hearsay rule. “In sexual as 

well as nonsexual offense cases, evidence of the fact and circumstances of a victim’s 
23

complaint may be relevant for a variety of nonhearsay purposes, regardless whether the 

complaint is prompt or delayed. To begin with, if such a victim did, in fact, make a 

complaint promptly after the alleged incident, the circumstances under which the 

complaint was made may aid the jury in determining whether the alleged offense 

occurred. Furthermore, admission of evidence that such a prompt complaint was made 

also will eliminate the risk that the jury, if not apprised of that fact, erroneously will infer 

that no such prompt complaint was made.” (People v. Brown, supra, 8 Cal.4th at p. 761.)

Defendant contends the trial court erred because it did not instruct the jury that the 

statements were being admitted for a non-hearsay purpose and could be considered only 

for the non-hearsay purposes of establishing the fact of the assault. The trial court, 

however, has no duty to instruct on the limited purpose for which the evidence is

admitted unless the party requests the instruction. (People v. Brown, supra, 8 Cal.4th at 

p. 757; People v. Manning (2008) 165 Cal.App.4th 870, 880.) Defendant did not request 

an instruction to that effect.

Defendant asserts that the prosecutor in her closing arguments used the evidence 

for the truth of the matter asserted. Defendant, however, did not object to the 

prosecutor’s argument and thus forfeited this contention. (See People v. Seumanu (2015) 

61 Cal.4th 1293, 1361-1362.)

Defendant also claims the statements should have been excluded because of their 

timing. But he also recognizes that “[t]he passage of time is not a decisive factor 

regarding the admission of fresh complaint statements.” (People v. Brown, supra, 

8 Cal.4th at p. 750.) And even if it was, not much time passed before Hazel made the 

complaints. She made her first statement to Wheatley approximately an hour and a half 

after she escaped defendant’s apartment. Wheatley went to the hospital, where Hazel 

made two other statements to him. She made a fourth statement to him later that same 

day. The trial court did not abuse its discretion in admitting Wheatley’s testimony of 

Hazel’s complaints.
24

IV

Prejudice

Defendant contends that the trial court’s evidentiary errors were prejudicial. We 

have determined the court erred only in admitting M.W.’s testimony in violation of her 

marital privilege not to testify. That error is prejudicial if it is reasonably probable the 

jury would have reached a result more favorable to defendant had the court excluded 

M.W.’s testimony. (People v. Watson (1956) 46 Cal.2d 818, 836.) 

A more favorable verdict was not reasonably probable. Hazel explained what 

happened the night of the attack, and much of her testimony was corroborated. She 

testified that defendant kept her in his apartment against her will for approximately an 

hour and 15 minutes. During that time, he repeatedly hit her with his fist and with a gun. 

She escaped only after he went to the bathroom, but she left her purse behind. She hid in 

bushes near defendant’s apartment. Later that morning, M.W. called Hazel to arrange to 

return Hazel’s purse to her from defendant. 

Text messages between Hazel and L.T. corroborated Hazel’s testimony. Hazel 

texted that she could not speak then, presumably because defendant was looking for her. 

She told L.T. that defendant had hit her with a gun. When L.T. picked up Hazel, she saw 

Hazel run from the bushes to her car. Hazel was wearing only one shoe and was covered 

in dirt.

Hazel’s and L.T.’s calls to 911 further indicated defendant had hit Hazel with a 

gun. Hazel only whispered so as not to be detected. Photos of her injures were shown to 

the jury. Additionally, the jury heard of Hazel’s fresh complaint of the attack to 

Wheately. The jury also heard from Hazel and L.W. about defendant’s history and 

propensity to physically abuse women with whom he had an intimate relationship.

Unlike Hazel’s testimony, defendant’s version of the incident was not as strongly 

corroborated. Defendant testified that Hazel started the altercation by punching him in 
25

the chest when they argued after having sex. Defendant pushed her off the bed and onto 

the floor. She got up and charged him. He grabbed her right arm to stop her from 

swinging at him. A photo of Hazel’s forearm appeared consistent with the area he 

grabbed. Holding her arm, he pushed her back into a dresser. She grabbed a toy and 

tried to hit him with it. He grabbed her arm again to stop her. That stopped the 

altercation. Defendant testified he only pushed her; he never punched her. He did not 

pull his gun out that night. He did not know how Hazel got the markings on her face. 

Defendant’s testimony does not explain why Hazel suffered injuries from being 

pistol whipped in the head. It does not explain why Hazel hid in the bushes outside 

defendant’s apartment waiting for police and L.T. to help. Nor does it explain why Hazel 

asked L.T. to call the police for her and could not talk with L.T. as she hid from 

defendant. 

Considering this evidence, we conclude it is not reasonably probable the jury 

would have reached a verdict more favorable for defendant had the trial court excluded 

M.W.’s testimony.

V

Staying of Sentence for False Imprisonment Under Section 654

Over defendant’s objection, the trial court did not stay the sentence on the false 

imprisonment count under section 654. It determined the assault and the imprisonment 

were separate offenses with different objectives. The false imprisonment occurred when 

defendant used his body to push Hazel down the hall and into his bedroom. The assault 

and corporal injury were senseless violence that was severable from the imprisonment 

and occurred after defendant and Hazel had sex. 

The court stated it would run the false imprisonment sentence consecutively to the 

assault sentence because the offenses were separate acts. The objective of the false 
26

imprisonment was sex. The objective of the assault was punishment and retribution. The 

offenses also were not committed concurrently. 

Defendant contends that the trial court erred when it did not stay his sentence for 

the false imprisonment count. Section 654 prohibits multiple punishments for the same 

act. He asserts that false imprisonment is a continuing offense, and here it overlapped 

with the assault. Defendant’s restraint of Hazel continued up through the time he 

assaulted her. The two offenses involved the same act and the same criminal intent. 

Section 654, subdivision (a), provides: “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.” 

“Whether a defendant may be subjected to multiple punishment under section 654 

requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may 

include not only a discrete physical act but also a course of conduct encompassing several 

acts pursued with a single objective. (See Neal [v. State (1960)] 55 Cal.2d [11,] 19; 

People v. Beamon (1973) 8 Cal.3d 625, 639.) We first consider if the different crimes 

were completed by a ‘single physical act.’ ([People v.] Jones [(2012)] 54 Cal.4th [350,] 

358.) If so, the defendant may not be punished more than once for that act. Only if we 

conclude that the case involves more than a single act—i.e., a course of conduct—do we 

then consider whether that course of conduct reflects a single ‘ “intent and objective” ’ or 

multiple intents and objectives. (Id. at p. 359; see also People v. Mesa (2012) 54 Cal.4th 

191, 199 [] [‘Our case law has found multiple criminal objectives to be a predicate for 

multiple punishment only in circumstances that involve, or arguably involve, multiple 

acts’].)” (People v. Corpening (2016) 2 Cal.5th 307, 311-312.)

“ ‘The proscription against double punishment in section 654 is applicable where 

there is a course of conduct which . . . comprises an indivisible transaction punishable 

under more than one statute . . . . The divisibility of a course of conduct depends upon 
27

the intent and objective of the actor . . . .’ [Citation.] ‘The defendant’s intent and 

objective are factual questions for the trial court; [to permit multiple punishments,] there 

must be evidence to support a finding the defendant formed a separate intent and 

objective for each offense for which he was sentenced. [Citation.]’ (People v. Adams

(1982) 137 Cal.App.3d 346, 355.)” (People v. Coleman (1989) 48 Cal.3d 112, 162.)

We must uphold the trial court’s determination that defendant’s crimes for 

purposes of section 654 were separate and involved separate intents and objectives if 

substantial evidence supports the determination. (People v. Kelly (2018) 28 Cal.App.5th 

886, 903.)

Substantial evidence supports the court’s determination. Defendant’s offenses

involved a course of conduct during which he committed separate offenses with separate 

objectives. He tried to kiss Hazel and blocked her from leaving his apartment. He used

his body to back her down the hall, into his bedroom, and onto the bed. He held her 

down on the bed with his forearm while he tried to take off her clothes. This was false 

imprisonment. His purpose of preventing Hazel from leaving was to have sex with her.

Once he fulfilled that objective, however, his demeanor “totally changed.” Instead 

of pursuing sex, he put on his clothes, then yelled and ranted at Hazel and accused her of 

prostituting herself. He became so enraged that he hit her with his fist numerous times. 

Then he pointed a gun at her and hit her with it several more times. His objective in 

hitting her was obviously not to pursue sex. He sought to injure her, perhaps because she 

did not enjoy the sex, perhaps because she was dating someone else. Whatever the 

reason, it was not the same objective he had when he backed her into his bedroom.

Defendant claims the false imprisonment and the assault were the same act with 

the same intent because false imprisonment continued up through the time defendant 

assaulted Hazel with the firearm. Temporal proximity, however, is not the sole 

determinant of whether the course of conduct was indivisible. “[M]ultiple punishment 

also may be imposed where the defendant commits two crimes in pursuit of two 
28

independent, even if simultaneous, objectives.” (People v. Douglas (1995) 

39 Cal.App.4th 1385, 1393-1394, italics added.) Multiple punishment based on a finding 

of “different, if simultaneous, intents . . . remains appropriate.” (People v. Latimer

(1993) 5 Cal.4th 1203, 1216.)

Defendant contends he has a due process right in the correct application of section 

654 to his sentence. Assuming he does, any such right was not violated here. Substantial 

evidence supports the trial court’s determination that defendant harbored separate intents 

and objectives when he falsely imprisoned Hazel and when he assaulted her with a 

semiautomatic firearm.

VI

Use of Same Fact in Aggravation of Base Count and for the Enhancement

Defendant claims the trial court improperly used dual facts when it sentenced him, 

resulting in two sentencing errors: (1) the court used the use of a firearm to impose the 

upper term for the assault with a firearm, but the firearm use was also an element of the 

assault offense; and (2) the court imposed the upper term for the assault offense without 

first striking the firearm enhancement. 

Defendant correctly acknowledges that this claim is forfeited because defense 

counsel did not object to the sentence at trial. (People v. Scott (1994) 9 Cal.4th 331, 

353.) However, defendant argues that we should address the error on the merits in order 

to avoid a claim of ineffective assistance of counsel in habeas proceedings. 

In order to demonstrate ineffective assistance of counsel, defendant must first 

show his counsel’s performance was “deficient” because counsel’s “representation fell 

below an objective standard of reasonableness . . . under prevailing professional norms.” 

(Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674].) Defendant 

cannot make this showing because any objection by counsel would have been futile. The 

trial court did not err.
29

The California Rules of Court provide our answer. Rule 4.420(d) prohibits a court 

from using a fact which is an element of the convicted offense to impose a particular 

term. And rule 4.420(c) authorizes a court to use a fact charged and found as an 

enhancement as the reason for imposing a particular term only if the court strikes the 

enhancement. Thus, had the court relied solely on defendant’s firearm use—a fact that 

was an element of the assault offense and a separate enhancement which the court did not 

strike—to impose the upper term on the assault offense, the court would have erred. 

The court, however, did not rely just on defendant’s firearm use to impose the 

upper term and not strike the enhancement. It also relied on the following factors:

“The crime involved great violence, great bodily harm, threat of great bodily 

harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;”

“The defendant has engaged in violent conduct that indicates a serious danger to 

society;” and

“The defendant’s prior convictions as an adult or sustained petitions in juvenile 

delinquency proceedings are numerous or of increasing seriousness[.]” (Cal. Rules of 

Court, rule 4.421(a)(1), (b)(1), (2).) 

The court needed only a single aggravating factor other than defendant’s firearm 

use to impose the upper term and not strike the enhancement. (People v. Osband (1996) 

13 Cal.4th 622, 728.) Here, it found three additional aggravating factors. 

Because counsel’s decision not to object to this aspect of the sentence was not 

deficient, counsel did not render ineffective assistance to defendant.
30

DISPOSITION

The judgment is affirmed. 

 

HULL, J.

We concur:

 

RAYE, P. J.

 

MURRAY, J.