Filed 5/24/21 P. v. Nelson CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

KURT WAYNE NELSON,

Defendant and Appellant.

 B296142

 (Los Angeles County

 Super. Ct. No. LA084564)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Joseph A. Brandolino, Judge. Affirmed in part, 

reversed in part, and judgment modified.

Lori Nakaoka, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. 

Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, 

Senior Assistant Attorney General, Steven D. Matthews and J. 

Michael Lehmann, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

INTRODUCTION

The trial court sentenced Kurt Wayne Nelson to 40 years in 

prison following his conviction on numerous charges resulting 

from a residential robbery during which Nelson impersonated a 

police officer, threatened two residents with a gun, and shocked 

them with a Taser. Nelson later attempted to dissuade the victims 

from testifying against him. Nelson contends the trial court 

should have sentenced him on two robbery charges and stayed his 

sentences for false imprisonment and assault with a 

semiautomatic firearm because Nelson completed the crimes by a 

single physical act or, if Nelson committed the crimes in a course 

of conduct, he had a single intent and objective.

Nelson and the People agree that Nelson’s convictions for 

assault with a firearm must be reversed because assault with a 

firearm is a lesser included offense of assault with a 

semiautomatic firearm. They also agree that one of Nelson’s two 

first degree residential burglary convictions must be reversed 

because Nelson committed only one burglary, and that two oneyear prior prison term enhancements must be stricken because 

neither of Nelson’s prior prison terms was for a sexually violent 

offense.

Finally, Nelson and the People agree that the trial court 

erred by imposing consecutive terms of one-third the middle term 

of two years (eight months) on two counts of attempted witness 

dissuasion rather than the full middle term on each count required 

by Penal Code1 section 1170.15. They disagree about whether we

should modify Nelson’s sentence to impose the full consecutive 

1 All further undesignated statutory references are to the 

Penal Code.
3

terms on the two witness dissuasion counts or remand the case to 

the superior court for resentencing.

We reverse Nelson’s convictions of assault with a firearm 

and one conviction of first degree residential burglary, and we 

strike the two one-year prior prison term enhancements. Because 

the record demonstrates the trial court would not impose 

concurrent sentences on the attempted witness dissuasion counts, 

remand is not appropriate, and we modify Nelson’s sentence to 

impose consecutive full middle terms of two years on each count of 

attempted witness dissuasion. We affirm the judgment in all 

other respects.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Amended Consolidated Information

The amended consolidated information charged Nelson with

two counts of kidnapping to commit another crime (§ 209,

subd. (b)(1); counts 1 and 2); two counts of first degree residential 

robbery (§ 211; counts 3 and 4); two counts of making criminal 

threats (§ 422, subd. (a); counts 5 and 6); torture (§ 206; count 7);

two counts of assault with a deadly weapon (a Taser) (§ 245, 

subd. (a)(1); counts 9 and 10); two counts of false imprisonment by 

violence (§ 236; counts 11 and 12); two counts of first degree 

residential burglary (§ 459; counts 13 and 16); two counts of 

assault with a firearm (§ 245, subd. (a)(2); counts 14 and 15); and 

two counts of attempted witness dissuasion (§ 136.1, subd. (a)(2); 

counts 19 and 20).2

2 The court dismissed a second torture charge (count 8) at the 

preliminary hearing and two charges of kidnapping for ransom 

(counts 17 and 18) pursuant to section 995.
4

The information alleged as to counts 1 through 7 and 9 

through 16 that Nelson committed the crimes while impersonating 

a police officer (§ 538d). The information alleged as to counts 1 

through 4 and 7 that Nelson personally used a firearm within the 

meaning of section 12022.53, subdivision (b), and as to counts 5, 6, 

and 9 through 15 that Nelson personally used a firearm within the 

meaning of section 12022.5, subdivision (a).

3 The information 

alleged as to counts 1 through 7, 9 through 16, and 19 and 20 that 

Nelson had suffered three prior prison terms (§ 667.5, subd. (b)).

The People amended the information at trial to conform to 

proof to add two counts of assault with a semiautomatic firearm 

(§ 245, subd. (b); counts 21 and 22) with police officer 

impersonation and firearm use allegations. Nelson pleaded not 

guilty and denied the special allegations.

B. The Evidence at Trial

1. The June 8, 2016 crimes

On June 8, 2016 at approximately 1:00 p.m. Jose Chavez 

was in the backyard of his home in North Hollywood, California. 

Jose’s adult daughter Catherine was eating lunch in the kitchen.

4

Catherine saw Nelson run to their front door, and she heard 

3 The information alleged as to one of the counts of first 

degree residential burglary (count 13) that Nelson personally used 

a firearm in the commission of the offense, but not as to the other 

first degree residential burglary count (count 16). The verdict 

form directed the jury to consider a firearm enhancement on 

count 16. Nelson does not raise this issue on appeal.

4 For clarity, we refer to Jose Chavez and Catherine Chavez 

by their first names.
5

banging on the door. Nelson yelled, “Police. Open up.” Catherine 

was scared.

Catherine ran to the backyard and told Jose a police officer

was at the door. Jose and Catherine returned to the house and 

looked through the open kitchen window at Nelson.

Nelson again identified himself as a police officer, and 

gestured towards his waistband, displaying a gold badge and a 

gun. He waved a piece of paper at Jose and Catherine, yelling, “I 

have a warrant.” Catherine told Jose to open the door, and Jose 

let Nelson in.

Nelson entered the house “very aggressive[ly],” and told Jose 

and Catherine to “move back.” Nelson drew and racked a gun, and 

pointed it at Jose and Catherine, causing them to retreat two or 

three steps. The gun was square, similar to a police gun, and 

appeared to be semiautomatic. A second man entered the house

after Nelson and went into the bedroom area.

5

Nelson told Jose and Catherine to move into the kitchen, 

and to keep their hands where he could see them. Nelson 

continued to point the gun at them. Nelson told Jose and 

Catherine to sit down on the kitchen floor, and then to lie face 

down on the floor. Jose and Catherine were scared and believed 

Nelson intended to kill them.

Nelson repeatedly and angrily yelled, “Where’s Gordo?” Jose 

and Catherine told Nelson they did not know anyone named 

“Gordo.” Jose told Nelson he had come to the wrong house.

Nelson pointed the gun at Jose’s head and yelled at Jose not to 

look at him. Jose felt the gun to his head as Nelson told Catherine 

he was going to kill Jose.

5 Police suspected the second man was Frederick Dorton, 

known as “Duke.” Dorton died before trial.
6

Nelson then asked Jose and Catherine, “Where’s the dope?” 

Jose again told Nelson he had come to the wrong house. Nelson 

stepped on Catherine’s leg and asked her “where the dope was.”

Nelson was “very aggressive” and “was cussing” at Catherine.

Nelson shocked Catherine with a Taser, causing Catherine 

to scream loudly and cry. Jose thought Nelson had shot 

Catherine. Catherine told the police that just before Nelson fired 

the Taser, Nelson told Jose, “I’m going to tase your daughter so 

you can see her hurt.”

Nelson kicked Catherine and pressed what Catherine 

thought was the gun to the back of her knee. Nelson told 

Catherine he knew where to shoot her so she would not walk 

“normal[ly]” again.

Nelson shocked Catherine with the Taser again. Catherine 

screamed and told Nelson to stop. Catherine testified the pain 

from the Taser “was like getting electrocuted,” “a 10” on a pain 

scale of zero to 10, and “like a shooting pain throughout [her] 

whole body at the same time.”

Nelson continued loudly asking, “Where’s the fucking dope?” 

Nelson said, “Don’t you watch TV and see how cops treat people or 

shoot people? Where is the dope?” Nelson told Jose and Catherine 

“he was going to ‘fucking kill’ [them] and no one would ‘fucking 

know that he did it, that it was him.’”

Nelson shocked Jose with the Taser. Jose “felt 

something . . . very hot,” and his “entire body became numb”; the 

sensation was “like, a very strong pain from heat.” Jose thought 

Nelson had shot him. Jose “was screaming really loud[ly]” from 

the pain. Jose testified, “The more I yelled . . . the harder [Nelson] 

did it; the more he did it, the louder I would yell. . . . [Nelson] just 

kept doing it. It was stronger and stronger.” Catherine “kept 

telling [Nelson] to ‘stop,’ and he wouldn’t stop.” Catherine thought 
7

Jose was dying. Jose ultimately “played dead” so that Nelson 

would stop shocking him with the Taser.

Nelson’s accomplice emerged from the bedroom area. Nelson 

asked him, “Did you find him?” The accomplice did not reply.

Nelson told Jose and Catherine, “You guys are fucking stupid. 

We’re going to fucking kill you, you watch.” Nelson also told Jose 

and Catherine that he and his accomplice would return with 

“backup.” The men left.

Catherine told Jose to “just wait.” Catherine waited about a

minute and then got up to make sure the men had gone. Jose 

remained on the floor until Catherine told him the men had left.

Jose had two Taser darts buried in the skin on his back. 

Jose asked Catherine to cut off the Taser wires. Catherine and 

Jose walked into the backyard, where Jose smoked a cigarette.

Jose was upset and angry. Catherine was scared. Catherine 

called her brother, who told her to call 911.

A police officer who responded to Catherine’s 911 call 

described her as “crying,” “angry,” “very . . . scared,” and 

“hysterical.” Paramedics arrived and administered medical care to 

Jose, but were unable to remove the Taser darts from Jose’s back. 

A doctor ultimately removed the darts from Jose’s back at the 

hospital; Jose had two small marks on his back, but did not receive 

any stitches. A defense medical expert testified Jose’s injuries 

were minor.

Catherine’s work backpack and other personal property were 

missing from her bedroom. Catherine’s missing property included 

a credit card, several pairs of designer sunglasses, diamond 

jewelry, seven designer watches, and a designer handbag.
8

Police compared Nelson’s DNA profile with the DNA profile 

from a zip tie collected from the Chavez home. The profiles were 

consistent.

2. The February 7, 2017 crimes

On February 7, 2017, a week before Nelson’s preliminary 

hearing, a “short, fat man” arrived at the Chavezes’ front gate.

The man yelled at Jose in Spanish to “come here.” The man told 

Jose and Catherine he was Nelson’s friend. The man said Nelson 

had given him the Chavezes’ address, and told the man to convince 

Jose and Catherine not to press charges against Nelson and not to 

testify at the preliminary hearing. The man said Nelson would 

reveal the identity of the person behind the attack on Jose and 

Catherine if they did not appear in court.6 Catherine recorded the 

man on her cellular telephone. Jose and Catherine were scared. 

Jose and Catherine later identified the man in a photographic 

display.7

C. The Jury Verdicts and the Sentencing

The jury acquitted Nelson on two charges of kidnapping to 

commit another crime (counts 1 and 2), torture of Jose (count 7), 

and two assault with a deadly weapon charges (counts 9 and 10). 

The jury found Nelson guilty on the remaining charges, and found 

the police impersonation and firearm allegations true.

6 While in custody, Nelson made several telephone calls 

discussing plans to have someone approach Jose and Catherine

and ask them not to testify.

7 The Chavezes had installed surveillance cameras following a 

prior burglary. The cameras recorded the June 8, 2016 and 

February 7, 2017 crimes, and the jury viewed videos and still 

photographs from the surveillance camera footage.
9

The trial court bifurcated the prior prison term allegations 

from the trial on the other charges. Nelson waived his right to a 

jury trial on the prior prison term allegations, and the trial court 

found true two of three prior prison term allegations.8

The trial court sentenced Nelson to an aggregate state 

prison term of 40 years. The court selected count 22 (assault of 

Catherine with a semiautomatic firearm) as the principal term 

and sentenced Nelson to the upper term of nine years, plus the

upper term of 10 years for the firearm enhancement pursuant to 

section 12022.5, subdivision (a), and an additional year for 

impersonating a police officer pursuant to section 667.17, for a 

total term of 20 years.9 On counts 3 and 4 (first degree residential 

robbery), the court sentenced Nelson to consecutive terms of onethird the middle term of four years (16 months), plus one-third of 

10 years (three years four months) for the firearm enhancement 

pursuant to section 12022.53, subdivision (b), for a total term of 

four years eight months on each count. On counts 11 and 12 (false 

imprisonment by violence), the court sentenced Nelson to 

consecutive terms of one-third the middle term of two years (eight 

months), plus one-third the middle term of four years (16 months) 

for the firearm enhancement pursuant to section 12022.5, 

subdivision (a), for a total term of two years on each count. On 

counts 19 and 20 (attempted witness dissuasion), the court 

sentenced Nelson to consecutive terms of one-third the middle 

8 The trial court granted the People’s motion to strike one of 

the prior prison term allegations because the former prior prison 

term did not qualify for enhancement pursuant to section 667.5, 

subdivision (b).

9 The trial court imposed the police officer impersonation 

enhancement on count 22 only.
10

term of two years for a total term of eight months on each count. 

On count 21 (assault of Jose with a semiautomatic firearm), the 

court imposed a consecutive term of one-third the middle term of 

six years (two years), plus one-third the middle term of four years 

(16 months) for the firearm enhancement pursuant to 

section 12022.5, subdivision (a), for a total term of three years four 

months. The court also imposed an additional two years for the 

two prior prison terms pursuant to section 667.5, subdivision (b).10

The trial court made detailed comments regarding its 

sentencing decisions:

“[L]et me start with counts 21 and 22. They are 

violent assaults. So . . . they can be consecutive 

because they’re separate victims. . . .

“As to counts three and four, again, there are 

separate victims, so . . . those two can be consecutive 

to each other. And the question is whether they have 

to be stayed, in light of [the] other counts.

“My view is that, certainly, with respect to counts 21 

and 22, there’s a different and independent criminal 

objective than assault with a firearm[] [and] when 

you’re talking about first degree residential 

robbery[] . . . there were numerous assaults. The 

assaults occurred throughout the course of the 

10 On counts 5 and 6 (making criminal threats), 13 and 16 (first 

degree residential burglary), and 14 and 15 (assault with a 

firearm), the trial court imposed and stayed pursuant to 

section 654 upper term sentences plus upper term sentences for 

the firearm enhancements.
11

defendant committing the numerous crimes on which 

he was convicted, including when the victims were on

the ground, which the court considers part of a 

separate . . . sadistic episode, apart from the robbery.

“I think the defendant’s objective in committing first 

degree robbery involves taking property from the 

victims while in the residence, so very different from 

assault with a firearm. And my view is they can be 

run consecutively. And it’s a violent crime, so we can 

have consecutive counts for each victim.

“And then, counts 11 and 12, false imprisonment that 

occurred while the victims were on the ground in the 

kitchen, again . . . as to that incident, the defendant, 

ha[d] . . . a sadistic objective, independent . . . of 

robbery. The facts—what he did in those 

circumstances while the victims were on the ground, 

including tasering and threatening the victims, was 

violent. So I think those, also, can be run consecutive 

to each other because there were two victims. . . . 

“Counts 5 and 6 are criminal threats. . . . [C]riminal 

threats were occurring throughout the course of the 

numerous crimes. . . . [I]n my view of the false 

imprisonment and the gun assault, the false 

imprisonment occurring and the gun assault while 

the victims are on the ground, I do think that the 

criminal threats were part of the same objective.
12

“I’m inclined to stay [the sentences on counts 5 

and 6].

“[C]ounts 19 and 20, the dissuading witness counts, 

are consecutive because they occurred on different 

occasions to the other counts, and I think there was a 

different objective for each witness. So I think they 

would be consecutive to each other, as well. . . .

“[T]o those counts to which . . . I am choosing to run 

consecutively, I’m also running one-third the mid 

term of the firearm enhancement on each of those 

counts because . . . there were different criminal 

objectives . . . for each of these. . . . 

“[U]nder the circumstances of this case, the way that 

the gun was used in the course of each of the different 

crimes—and I’ve explained why I think those crimes 

that I may run consecutively have different 

objectives—I think the use of the gun within those 

different objectives allows me to run those 

consecutively, as well.

“I recognize I have the discretion to strike the firearm 

enhancements, and I’m declining to exercise that 

discretion.”

The trial court also identified aggravating factors it stated

supported its decision to impose consecutive sentences, including 

Nelson’s “significant criminal history,” the “violent, brazen, and 

callous” crimes that “truly demonstrate utter lack of empathy or 

consideration of others,” and the likelihood that Jose and 
13

Catherine would be affected by the crimes “for the rest of their 

lives.” The court further observed that Nelson had “shown no 

remorse, absolutely no remorse,” and that the court was 

“convinced [Nelson], . . . someone capable of committing this type 

of a crime, [would] do it again, given the chance.”

The trial court concluded its sentencing remarks as follows:

“I want to make it clear for the appellate court—my 

intention is to sentence the defendant to the 

maximum amount of time. If the appellate court 

finds that I’m mistaken in the counts that I’m staying 

pursuant to Penal Code section 654 or any 

allegations, my intent is to impose consecutive time 

on those counts and any allegations. So I want to 

make that clear for the record.”

Nelson filed a timely appeal.

DISCUSSION

A. Nelson’s Sentence Does Not Violate Section 654

1. Governing law and standard of review

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.”

The determination whether a defendant may be subjected to 

multiple punishment under section 654 requires a two-step 

inquiry. First, the court considers whether the different crimes 

were completed by a single physical act. If so, the defendant may 

be punished only once for the single act. (People v. Corpening

(2016) 2 Cal.5th 307, 311 (Corpening).) If more than a single act is 
14

involved, that is, a “course of conduct,” then the court considers 

whether “that course of conduct reflects a single “‘intent and 

objective’” or multiple intents and objectives.” (Id. at p. 311.) If 

multiple acts were pursued with a single criminal intent and 

objective, “‘“‘the defendant may be punished for any one of such 

offenses but not for more than one.”’”’ (People v. Jackson (2016) 

1 Cal.5th 269, 354 (Jackson); accord, Corpening, at p. 311.)

“Whether multiple convictions are based upon a single act is 

determined by examining the facts of the case.” (People v. Mesa

(2012) 54 Cal.4th 191, 196; accord, Corpening, supra, 2 Cal.5th at 

p. 312.) Similarly, “[i]ntent and objective are factual questions for 

the trial court, which must find evidence to support the existence 

of a separate intent and objective for each sentenced offense.” 

(Jackson, supra, 1 Cal.5th at p. 354; accord, People v. Vasquez

(2020) 44 Cal.App.5th 732, 737.)

“‘Whether section 654 applies in a given case is a question of 

fact for the trial court, which is vested with broad latitude in 

making its determination. [Citations.] Its findings will not be 

reversed on appeal if there is any substantial evidence to support 

them. [Citations.] We review the trial court’s determination in 

the light most favorable to the respondent and presume the 

existence of every fact the trial court could reasonably deduce from 

the evidence.’” (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378; 

accord, People v. Osband (1996) 13 Cal.4th 622, 731.)

2. Substantial evidence supports the trial court’s

determination that section 654 does not bar separate 

punishment for robbery, false imprisonment, and 

assault with a semiautomatic firearm

Nelson contends the robbery, false imprisonment, and 

firearm assaults consisted of a single physical act—the use of force 
15

and fear to commit a robbery. He alternatively argues that if he 

committed the crimes in a course of conduct, he had a single intent 

and objective—to rob Jose and Catherine.

The trial court disagreed, finding that Nelson committed 

“numerous assaults,” which the court described as “part of a 

separate . . . sadistic episode, apart from the robbery.” The court 

found that Nelson’s objective in committing the robbery—taking 

property from Jose and Catherine while in their home—was “very 

different” from assaulting them with a semiautomatic firearm. 

The trial court likewise found that Nelson’s objective in falsely 

imprisoning Jose and Catherine through violence—confining Jose 

and Catherine in the kitchen by repeatedly shocking them with a 

Taser and threatening to kill them—was “sadistic” and 

independent of the objective of taking their property. In sum, the 

trial court concluded that Nelson’s violent assaults of Jose and 

Catherine with the gun and the Taser were separate from, and 

unnecessary to accomplish, the robbery. Substantial evidence 

supports the trial court’s findings.11 (See People v. Nguyen (1988) 

204 Cal.App.3d 181, 191 [section 654 “cannot, and should not, be 

stretched to cover gratuitous violence or other criminal acts far 

11 The only case Nelson cites in support of his contention that 

the robbery, false imprisonment, and firearm assaults consisted of 

a single physical act, Corpening, supra, 2 Cal.5th 307, 

demonstrates the opposite. The defendant in Corpening was 

convicted of carjacking and robbery “based on the same forceful 

taking of a vehicle.” (Id. at p. 309.) The Supreme Court held that 

section 654 barred consecutive sentences because “the same 

taking [], according to the prosecution, accomplished the crimes of 

both robbery and carjacking.” (Ibid.) A single vehicle taking in no 

way resembles Nelson’s series of separate criminal acts against 

Jose and Catherine.
16

beyond those reasonably necessary to accomplish the original 

offense”]; see also People v. Cleveland (2001) 87 Cal.App.4th 263, 

271-272 [trial court did not err in finding defendant “harbored 

divisible intents in committing two separate crimes—robbery and 

attempted murder” where amount of force used to steal radio was 

“far more than necessary”].)

Nelson also argues the trial court violated section 654 when 

it used “the same aspect—the criminal act of using a gun” to 

impose firearm enhancements on each robbery, false 

imprisonment, and semiautomatic firearm assault count. In 

People v. Ahmed (2011) 53 Cal.4th 156 the Supreme Court held

sentence enhancements may be subject to section 654 provided the 

specific sentencing statutes do not address whether more than one 

enhancement may be imposed. (Id. at p. 159.) The Court held

that, when applied to multiple enhancements for a single crime, 

separate enhancements may be applied to different aspects of the 

same substantive offense (id. at p. 163), but “section 654 bars 

multiple punishment for the same aspect of a criminal act.” (Id. at 

p. 164.)

Nelson does not challenge the trial court’s imposition of both 

a firearm enhancement and a police impersonation enhancement 

on count 22 (assault of Catherine with a semiautomatic firearm). 

And, contrary to Nelson’s claim, the trial court did not impose

multiple punishment for the same aspect of a single criminal act. 

The trial court separately punished Nelson for six separate crimes 

and six distinct uses of a gun: brandishing and racking the gun to 

subdue Jose and Catherine upon entering their home; using the 

gun to compel Jose and Catherine to move to the kitchen and lie 

face down on the floor; and putting the gun to Jose’s head and 

threatening to shoot Catherine and permanently disable her. The 

court did not violate section 654 when it imposed firearm 
17

enhancements for Nelson’s six separate uses of a gun in the 

commission of robbery, false imprisonment, and assault with a 

semiautomatic firearm of two victims.

12 (Cf. People v. Calles

(2012) 209 Cal.App.4th 1200, 1217-1218 [section 654 prohibited 

court’s use of same act to sentence defendant for the offense of 

fleeing the scene of an accident and to enhance his vehicular 

manslaughter conviction based on the same conduct of fleeing the 

scene of a crime].)

B. Nelson’s Assault with a Firearm Convictions Must Be 

Reversed

The amended information charged Nelson with two counts of 

assault with a firearm (counts 14 and 15). The People amended 

the information at trial to conform to proof and added two counts 

of assault with a semiautomatic firearm (counts 21 and 22). The 

jury convicted Nelson on all four counts. Nelson argues, and the 

People agree, that the convictions of assault with a firearm must 

be reversed because assault with a firearm is a lesser included 

offense of assault with a semiautomatic firearm.

“The law prohibits simultaneous convictions for both a 

greater offense and a lesser offense necessarily included within it, 

when based on the same conduct. [Citation.] ‘When the jury 

expressly finds defendant guilty of both the greater and lesser 

offense . . . the conviction of [the greater] offense is controlling, and 

the conviction of the lesser offense must be reversed.’” (People v. 

12 Nelson acknowledges the trial court did not violate 

section 654 by sentencing him separately for crimes committed 

against two victims. (See People v. Correa (2012) 54 Cal.4th 331, 

341 [section 654 does not preclude imposition of separate 

sentences for crimes of violence committed against different 

victims]; People v. Oates (2004) 32 Cal.4th 1048, 1063 [same].)
18

Milward (2011) 52 Cal.4th 580, 589.) “[I]f the statutory elements 

of the greater offense include all of the statutory elements of the 

lesser offense, the latter is necessarily included in the former.” 

(People v. Reed (2006) 38 Cal.4th 1224, 1227.) “‘[A] statutorily 

lesser included offense is subject to the bar against multiple 

convictions in the same proceeding . . . .’” (Id. at p. 1229.)

Here, the greater offense, assault with a semiautomatic 

firearm (§ 245, subd. (b)), includes all of the elements of the lesser 

offense, assault with a firearm (§ 245, subd. (a)(2)). Nelson 

therefore may not be convicted of both offenses. We accordingly 

reverse the assault with a firearm convictions (counts 14 and 15).

C. One of Nelson’s Burglary Convictions Must Be Reversed

The People charged Nelson with two counts of first degree 

residential burglary (counts 13 and 16), one count against Jose

and one count against Catherine. The jury convicted Nelson on 

both counts. Nelson argues, and the People agree, that one of the

burglary convictions must be reversed because Nelson committed 

only one burglary.

Section 459 defines the crime of burglary as entry into “any 

house, room, apartment, tenement, shop, warehouse, store, mill, 

barn, stable, outhouse or other building . . . with intent to commit 

grand or petit larceny or any felony . . . .” The elements of first 

degree burglary are (1) entry into a structure currently being used 

for dwelling purposes and (2) with the intent to commit a theft or a 

felony. (§§ 459, 460; People v. Sample (2011) 200 Cal.App.4th 

1253, 1261.)
19

The People concede “[i]t is undisputed that [Nelson] entered 

a single dwelling, the Chavez residence.” We therefore reverse 

Nelson’s conviction of first degree residential burglary as to Jose 

(count 16).

D. The Two One-year Prior Prison Term Enhancements Must Be 

Stricken

Nelson argues, and the People agree, that both one-year 

prior prison term enhancements must be stricken. Effective 

January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) 

amended section 667.5, subdivision (b), to provide a one-year prior 

prison term sentence enhancement only for sexually violent 

offenses, as defined in Welfare and Institutions Code section 6600, 

subdivision (b). (People v. Gastelum (2020) 45 Cal.App.5th 757, 

772; People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Senate 

Bill No. 136 applies retroactively to Nelson because his sentence 

was not final at the time the new law became effective on January 

1, 2020. (People v. Winn (2020) 44 Cal.App.5th 859, 872 [“Because 

[defendant’s] conviction is not yet final, he is entitled to the 

retroactive benefit of the change in law.”]; Jennings, at p. 682 

[“Senate Bill No. 136’s . . . amendment to section 667.5, 

subdivision (b) applies retroactively to all cases not yet final as of 

its January 1, 2020, effective date.”]; see In re Estrada (1965) 

63 Cal.2d 740, 744-745.)

The People concede that neither of Nelson’s prior prison 

terms was for a sexually violent offense. We thus strike the two 

one-year section 667.5, subdivision (b), enhancements from 

Nelson’s sentence. (People v. Smith (2020) 46 Cal.App.5th 375, 

396; People v. Gastelum, supra, 45 Cal.App.5th at p. 772.)
20

E. The Sentences for Attempted Witness Dissuasion Must Be 

Modified

The jury convicted Nelson on two counts of attempted 

witness dissuasion pursuant to section 136.1, subdivision (a)(2) 

(counts 19 and 20). The trial court imposed consecutive terms of 

one-third the middle term of two years (eight months) on each 

count. The People assert, and Nelson agrees, that Nelson’s 

sentences for attempted witness dissuasion must be corrected 

because section 1170.15 requires the trial court to impose the full 

middle term on each count if it imposes consecutive sentences.

Section 1170.15 states:

“Notwithstanding subdivision (a) of Section 1170.1 

which provides for the imposition of a subordinate 

term for a consecutive offense of one-third of the 

middle term of imprisonment, if a person is convicted 

of a felony, and of an additional felony that is a 

violation of Section 136.1 or 137 and that was 

committed against the victim of . . . the first 

felony . . . the subordinate term for each consecutive 

offense that is a felony described in this section shall 

consist of the full middle term of imprisonment for 

the felony for which a consecutive term of 

imprisonment is imposed . . . .”

Section 1170.15 “requires the trial court to impose the full middle 

term of imprisonment only if a consecutive sentence is imposed. 

The section does not require the trial court to impose a consecutive 

sentence, but instead indicates that if the trial court chooses 

consecutive sentencing it must impose a full-term sentence for the 

witness dissuasion count.” (People v. Woodworth (2016) 

245 Cal.App.4th 1473, 1479.)
21

The People request we modify Nelson’s sentence to impose 

the full consecutive terms for the attempted witness dissuasion 

counts. Nelson argues remand is appropriate for the trial court to 

determine in the first instance whether to impose consecutive or 

concurrent terms.

“Generally, when the record shows that the trial court 

proceeded with sentencing on the erroneous assumption it lacked 

discretion, remand is necessary so that the trial court may have 

the opportunity to exercise its sentencing discretion at a new 

sentencing hearing.” (People v. Brown (2007) 147 Cal.App.4th 

1213, 1228; see People v. Johnson (2019) 32 Cal.App.5th 26, 29 

[remand appropriate when reviewing court would otherwise have 

to speculate about what trial court may have done had it been 

fully aware of its sentencing discretion].)

The record here does not reflect that the trial court acted on 

the erroneous assumption it lacked discretion to impose the 

attempted witness dissuasion sentences concurrently. The trial 

court explained it was imposing consecutive sentences for 

attempted witness dissuasion because those crimes “occurred on 

different occasions to the other counts, and . . . there was a 

different objective for each witness.” (See Cal. Rules of Court, 

rule 4.425(a)(3) [that “crimes were committed at different times or 

separate places” supports imposing consecutive rather than 

concurrent sentences].) Moreover, the trial court unequivocally 

stated its intention to sentence Nelson to the maximum prison 

term available. The court described Nelson’s treatment of Jose 

and Catherine as “sadistic,” and emphasized Nelson’s “significant 

criminal history,” “utter lack of empathy,” and that Nelson had

“shown no remorse, absolutely no remorse.” As further evidence of 

its intention to impose the longest sentence possible, the trial 

court expressly acknowledged its discretion to strike the firearm 
22

enhancements, and declined to do so. Reviewing this record, we 

conclude there is no possibility the trial court would on remand 

impose concurrent sentences on the attempted witness dissuasion 

counts. (See People v. Jones (2019) 32 Cal.App.5th 267, 274, 275 

[“Besides not exercising its discretion for leniency when it could 

have, the trial court made clear its intention to impose the most 

stringent sentence it could justifiably impose”; “[u]nder these 

circumstances, we are confident the court would not strike the 

felony prior and its resulting enhancement out of lenience toward 

defendant”].) We accordingly modify Nelson’s sentence to impose 

consecutive full middle term sentences of two years on each count 

of attempted witness dissuasion (counts 19 and 20).13

DISPOSITION

Nelson’s convictions of assault with a firearm (counts 14 

and 15) and one conviction of first degree residential burglary 

(count 16) are reversed. The two one-year prior prison term 

enhancements imposed pursuant to section 667.5, subdivision (b), 

are stricken. The sentences on each count of attempted witness 

dissuasion (counts 19 and 20) are modified to impose consecutive 

sentences of the full middle term of two years on each count, 

resulting in an aggregate state prison term of 40 years eight 

months. The judgment is affirmed in all other respects. The 

13 Nelson argues we should remand for resentencing because 

the trial court improperly used the same facts to support 

consecutive sentences and the upper terms on count 22 (assault of 

Catherine with a semiautomatic firearm) and the stayed counts. 

Nelson acknowledges he did not make this objection at sentencing. 

Nelson thus forfeited this argument on appeal. (People v. Scott

(1994) 9 Cal.4th 331, 353; People v. De Soto (1997) 54 Cal.App.4th 

1, 7-8; People v. Erdelen (1996) 46 Cal.App.4th 86, 91.)
23

superior court is directed to prepare an amended abstract of 

judgment and forward it to the Department of Corrections and 

Rehabilitation.

McCORMICK, J.*

We concur:

PERLUSS, P. J.

SEGAL, J.

* Judge of the Orange County Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.