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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

KURT WAYNE NELSON

,

Defendant and Appellant. B2 96142

(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 Becer ra and Rob Bonta , Attorney s 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 INTRODUC TION

The trial court sentenced Kurt Wayne Nelson to 40 years in prison following his conviction on numerous charges re sulting
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 th e trial court
should have sentenced him on two robbery charges and stayed his sentences for false imprisonment and assault with a

sem iautomatic 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 mu st be reversed because Nelson committed only one burglary, and that two one

year 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 th e 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 Code 1 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 convict ion 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 Cons olidated Information

The amended consolidated information charged Nelson with two counts of kidnapping to commit another crime (§ 2 09
, subd. ( b ) (1) ; count s 1 and 2 ) ; two counts of first degree residential robbery (§ 211 ; count s 3 and 4 ) ; two counts of mak ing criminal
threats (§ 4 2 2 , subd. (a); count s 5 and 6 ) ; torture (§ 206 ; count 7 ) ; two counts of assault with a deadly weapon ( a T aser) ( § 245
, subd. ( a ) (1) ; count s 9 and 10 ) ; two counts of false imprisonment by
violence (§ 236 ; count s 11 and 12 ) ; two counts of first degree residential burglary (§ 459 ; count s 13 and 16 ) ; two counts of assault with a firearm ( § 245 , subd. ( a ) (2) ; count s 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, subd ivision (a)

. 3 The information alleged as to counts 1 through 7, 9 through 16, and 19 and 20 that
N elson 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 impersonati on 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 the ir front door, and she heard

3 The information alleged as to one of the counts of first degree residential burglary (count 13) that Nelson p ersonally used a firearm in the commission of the offense, but not as to the other first degree residential burglary count (count 16). T he verdict for m 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.” Cathe rine
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 t o l d 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 tol d 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 s hocked 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 th e 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 Ta ser “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 co ps 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 . . . t he 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 thought7

Jose was dying. Jose ultimat ely “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 wal ked 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,” “ver y . . . 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 h is 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, 201 7
, a week before Nelson’s preliminary hearing, a “short, fat man” arrived at the Chavez es ’ front gate. The man yelled at Jose in Spanish to “come here.” The man told
Jose and Catherine he was Nelson’s friend . T he man said Nelson had given him the Chavezes’ address, and told the man to convince Jose and Catherine not to press charges agains t Nelson and not to testify at the preliminary hearing. The man said Nelson would reveal the identity of the person behind t he 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 Verdict s and the Sentencing
The jury acquitted Nelson o n 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 o n the remaining charges, and found the police impersonation and firearm allegations true

.

6 While in custody, Nelson made several telephon e 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 jur y viewed videos and still photographs from the surveillance camera footage

.9 The trial court bifurcated the prior prison term allegation s 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 a n aggregate state priso n term of 40 years. The c ourt selected count 2 2 (assault of Catherine with a semiautomatic firearm) as the princip al 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 one

t hird 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 (attempt ed witness dissua sion ), 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 month s 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 p ursuant 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 r egarding its sentencing decisions: “[L]et me start with counts 21 and 22. They are
violent assaults . S o . . . they can be consecutive because they’re separate victims. . . .

“A s 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 []

. . . t here 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 t he 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 taserin g 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

nu merous 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 t hink 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 differen t 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 differ ent 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 co urt 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 and13

Catherine would be affected by the crimes “for the re st 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 tr ial 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 S ection 654

1. Governing law and standard of review
Section 654, subdivision (a), provides

, “ A n 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 t erm 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 conside rs 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 is14

involved, that is, a “c ourse 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 exa mining 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 1 3 54, 1378; accord, Pe ople v. Osband (1996) 13 Cal.4th 622, 731.)

2. Substantial e vidence supports the t rial c ourt’s
determination that section 654 d oes n o t b ar s eparate

p unishment for r obbery

, false i mprisonment, and

a ssault with a s emiautomatic f irearm

Nelson contends the robbery, false imprisonment, and firearm assaults consisted of a single physical act

— the use of force15

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

— t o 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

— wa s “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 viole nce

— 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 assault s o f 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, 19 1 [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 imprison ment, 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 seri es 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.4 t h 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 65 4 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 enhancem ents 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.) Th e Court held that, when applied to multiple enhancements for a single crime, separate enhance ments may be applied to different aspects of the same substantive offense ( i d

. 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

. T he trial court separately punished Nelson for six separate crimes
and six distinct uses of a gun : brandish ing and rack ing 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 put ting the gun to Jose’s head and
threaten ing to shoot Catherine and permanently disable her. The

court did not violate section 654 when it imposed firearm17

e nhancements 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 u se 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
R eversed
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 conviction s 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 acknowledge s the trial court did not violate section 654 by sentencing h im 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 elemen ts 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. W e accordingly
reverse the assault with a firearm convictions ( count s 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 a s 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 t hat [Nelson] entered a single dwelling, the Chavez residence.” We therefore re verse Nelson’s conviction of first degree residential burglary as to Jose (count 16).

D. The Two One

- y ear 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. 13 6 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

ret roactive 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 Ca l.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. Th e People assert, and Nelson agrees, that Nelson’s sentences for attempted witness dissuasion must be corrected because section 1170.15 require s 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 imp risonment, if a person is convicted of a felony, and of an addition al fel ony 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 t he 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 T he People request we modify Nelson ’s sentence to impose
the full consecutive term s 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

con current 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 app ropriate 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 w as 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 “cr imes 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 d escribed 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, t he trial court expressly acknowledged its discretion to strike the firearm22

enhancements, and declined to do so

. Reviewing th is record, we conclude there is no possibility the trial court would on remand impose concurrent s entences 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 witne ss 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 pur suant 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

, result ing in an aggregat e 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
t he trial court improperly used the same facts to support consecutive sentence s 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. Ne lson thus forfeited this argument on appeal. ( People v. Scott (1994) 9 Cal.4th 331, 353; People v. D e Soto (199 7 ) 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.