Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F10819
Retired Associate Justice of the Court of Appeal, Third Appellate district, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Jeffrick Brown appeals his convictions for attempted premeditated murder (Pen. Code, §§ 664/187), two counts of forcible rape (§ 261, subd. (a)(2)), one count of penetration with a foreign object (§ 289, subd. (a)(1)) and the true findings of a number of enhancement allegations. Defendant contends that the trial court erred in denying his Marsden motions; that, notwithstanding People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the trial court erred in relying on defendant’s prior criminal history in imposing an upper-term sentence; and that the court erred under section 654 in imposing a great bodily injury enhancement on more than one of the counts. We shall affirm.
Hereafter, undesignated section references are to the Penal Code.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Facts
1995 Rape
In 1995, Jeanette B. and Nancy F. were roommates. Jason Butikofer lived in the same apartment complex as Jeanette B. and Nancy F. During that year, each of them described incidents in which a Black male was seen prowling around the apartment complex looking in the windows. Butikofer confronted the man, asked him for identification and saw the man’s name was something “ethnic” that started with a “J” like James or Jamal, and his last name was something like “Johnson or Jefferson or Brown.” In a 2004 photo lineup and at trial, Butikofer identified the prowler as defendant. Neither Jeanette B. nor Nancy F. could identify the prowler as defendant.
In October 1995, Jeanette B. and Nancy F. went out “partying” to several bars and clubs. Nancy F. had a number of drinks and was fairly intoxicated by the time the pair returned home around 2:00 a.m. Jeanette B. got ready for bed and Nancy F. went outside to get some air.
Jeanette heard Nancy leave the apartment and she lay down in bed to sleep. A few minutes later, Jeanette heard a scream. She looked out the window and saw a Black man carrying Nancy away. Nancy was hanging over the man’s shoulder “like a rag doll.” Jeanette ran outside and screamed Nancy’s name. When she realized Nancy could not hear her, she ran back inside and called 911. Jeanette then called her sister, and while she was on the phone, she saw the man walking back toward the apartment. The police arrived and Jeanette went out to meet them. As she was telling the police which direction the man had gone, Nancy came walking toward them. Nancy was dazed and disheveled. Jeanette could not identify the man who had carried Nancy away because she had only seen him from behind, but she believed he was Black because she had seen his arms, his build and his hair.
The crime scene investigators found a trail of blood in the area in which Nancy had been carried and footprints following the same path. They also found the pantyhose Nancy had been wearing. In addition, a paper cup was found from which a technician was able to get fingerprints. These fingerprints were later matched with defendant’s fingerprints.
Nancy was taken to the hospital, where a nurse practitioner gave her a sexual assault examination. The sexual assault examination revealed tearing and bleeding to Nancy’s genital area that were consistent with sexual trauma. Nancy, who had been inebriated and who was rendered unconscious by her assailant, had not consented to sexual intercourse with anyone. The nurse also took evidentiary vaginal swabs. A DNA profile developed following a February 2004 arrest established a DNA match between defendant and the sample taken from Nancy.
1996 Rape
In March 1996, Susan C. lived with her mother in an apartment complex approximately one mile away from the apartment where Nancy and Jeanette lived. One evening, Susan was in her bedroom studying for a test while her mother was at work. Around 7:00 p.m., Susan heard noises in the next room and thought her mother had returned home.
Susan was thinking of leaving the bedroom to greet her mother when a man walked into her bedroom holding a knife above his head. He was holding the knife in a “classic” horror movie stance and came at her with the knife raised above his head. As he walked toward her, he tried to stab her in the chest. Susan reached up with both hands and caught the blade of the knife in her hands. Susan and the man then began to struggle. The man had fallen to his knees and was on the bed straddling her. As they struggled for the knife, it flew out of their hands and across the room.
After he lost the knife, the man grabbed Susan’s throat with both hands, used his body weight to press down on her and choked her. Susan continued to try to fight, kicking and hitting him and trying to knock him off of her.
The man stopped choking her. He then grabbed one of the pillows from her bed, put it over her face and pushed his whole body weight down onto her face. Susan struggled to breathe and thought she was going to die. Susan continued to fight the man, trying to kick him with her knees and feet. Eventually she was able to make him lose his balance and she felt some of his weight release off of her.
As soon as she felt his weight release, Susan rolled over and got out from underneath the pillow. She told the man he could take anything in the house, but pleaded with him not to kill her or hurt her. The man said nothing at all.
Instead, he looked over at her, took off his pants, and removed her underwear. He digitally penetrated her and then asked for permission to orally copulate her. She did not answer because she did not want to make him angry by saying no and he did not orally copulate her. The man then had sexual intercourse with her. She did not continue to struggle because “he had just tried three different ways to kill [her] and [she] didn’t want to make him angry, and [she] was hoping and praying that he would just leave, if [she] . . . just let him have sex with [her].”
Susan asked the man if he knew her and he did not respond. She then asked him if he liked her and he nodded “yes.” He asked Susan her name and she told him. She asked his name and he said it was Mike. She asked how old he was and he told her he was 25 years old. After he ejaculated, as he was leaving the apartment, he turned back and asked Susan for her phone number. She gave him a false number and he left. Susan called 911 and the police arrived. She was taken by ambulance to U.C. Davis Medical Center.
Susan’s hands were badly cut from the knife. She also had an open fracture to her jaw and severe bruising on her throat. She had multiple stitches to repair the injuries to her hands and surgery to repair her jaw, including the insertion of a metal plate. A sexual assault examination was also performed and evidentiary swabs were taken.
Susan described the man who attacked and raped her as Black, with a medium build and short hair. The knife was found in Susan’s room and fingerprints were recovered from the knife. One of the prints on the knife blade was identified as defendant’s palm. The DNA samples taken from Susan also matched defendant.
Procedural History
In count one, defendant was charged with the attempted premeditated murder of Susan C. (§§ 664/187.) It was further alleged as to this count that defendant had personally used a deadly weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury (§ 12022.7, subd. (a)). Count two charged defendant with forcible rape (§ 261, subd. (a)(2)) and count three with genital penetration with a foreign object (§ 289, subd. (a)(1)). As to each of these counts, it was further alleged that defendant had used a deadly weapon (§§ 12022.3, subd. (a), 667.61, subd. (e)(4)), inflicted great bodily injury (§§ 12022.7, subd. (a), 667.61, subd. (e)(3)) and perpetrated the offense during the course of a burglary (§§ 667.61, subd. (d)(4), 667.61, subd. (e)(2)). In count four, defendant was charged with the forcible rape of Nancy F. (§ 261, subd. (a)(2).) As to this count, it was further alleged that defendant had accomplished the rape during a kidnapping (§§ 667.61, subd. (d)(2), 667.61, subd. (e)(1)), had personally inflicted great bodily injury (§ 667.61, subd. (e)(3)) and had committed the offense of rape against two or more victims (§ 667.61, subd. (e)(5)).
Following a jury trial, the jury found defendant guilty as charged and found all the enhancement allegations true.
At sentencing on June 2, 2006, count three was designated as the principal term and defendant received an aggregate term of 21 years. This term consisted of an aggravated term of eight years on the genital penetration with a foreign object conviction, an additional consecutive three-year term for the infliction of great bodily injury enhancement, and an additional consecutive 10-year term for the use of a deadly weapon enhancement. For the attempted murder conviction, defendant was sentenced to a consecutive sentence of life with the possibility of parole. Added to that term was an additional consecutive three-year term for the great bodily injury enhancement and an additional consecutive one-year term for the use of a deadly weapon enhancement. For the rape conviction in count two, defendant was sentenced to 25 years to life, consecutive, with additional consecutive terms of three and 10 years for the great bodily injury and deadly weapon enhancements, respectively. For the rape charge in count four, defendant was sentenced to a consecutive term of 25 years to life. Thus, defendant received an aggregate determinate sentence of 38 years, plus indeterminate terms of 50 years to life and life imprisonment with the possibility of parole. All of these sentences were consecutive to each other.
Defendant filed a timely notice of appeal on June 6, 2006.
On September 28, 2006, the trial court recalled defendant’s sentence because of a joint request by the parties.
In resentencing defendant, the parties argued the issue, at that time not yet resolved, as to whether upper-term sentences could be imposed upon defendant based on his record of prior convictions or whether the imposition of an upper-term sentence required a jury determination. In reimposing the upper-term sentence, the court expressly relied upon defendant’s “total adjudicated record of felony violence,” a prior record of convictions that included three felony spousal abuse convictions in 1992, 1993 and 1996 and a felony battery conviction in 1996.
Discussion
I
Defendant contends the trial court erred in denying his Marsden motions without satisfying its duty of inquiry. We are not persuaded.
Defendant was represented at trial by two appointed attorneys, Donald Thommen and Lisa Franco. Thommen was trial counsel and Franco was appointed specifically to assist with the DNA issues.
Marsden Motions at Trial
On April 3, 2006, Thommen made a motion to be relieved as counsel. Thommen believed a conflict of interest had developed based on the fact that he believed his cocounsel, Franco, had filed a complaint against him regarding the handling of defendant’s case. He also stated that defendant had told him that he had discussed these matters with Franco and that defendant had agreed there was a problem in Thommen’s representation of him. Thommen believed this put him in a position of having divided loyalties because he would “have to watch everything going on over my back.”
In response, the court noted that the specific complaints had been that Thommen did “little” voir dire, did not give an opening statement and was not adequately questioning the witnesses. The court noted the “complaints” had no merit, the voir dire was “fine,” Thommen had given an opening statement, and had been questioning the witnesses appropriately. Thommen claimed Franco’s conduct had interfered in the attorney/client relationship between himself and defendant and he was concerned that the interference would continue. Since the two attorneys had separate areas of representation, the court did not believe Thommen was precluded from continuing to represent defendant. The court also noted it was ultimately Thommen’s case in that Franco was not appointed to develop strategy, tactics or advise defendant on the case. The court took assurances from Thommen that he would continue to represent the best interests of defendant to the best of his ability, and detailed Thommen’s extensive experience in criminal defense work, rape cases and death penalty cases. While the court agreed Franco’s statement of complaint was problematic, it did not believe it affected defendant’s fundamental right to a fair trial or Thommen’s ability to adequately represent defendant. This belief was bolstered by Thommen’s extensive experience and his conduct in the trial to that point.
Defendant then indicated he did not feel comfortable with his attorneys “fighting against each other” and asked to file a Marsden motion. Defendant did not offer any additional complaints. The court reiterated its position that counsel was experienced and would adequately represent him. The court also noted that the relationship between the attorneys, given their different areas of responsibility, would not necessarily impact on his right to a fair trial and did not affect either attorney’s ability to adequately represent him. Based on these reasons, the court denied the motion.
Later that day, defendant indicated he would like to make a Marsden motion. The court asked defendant if he had any complaints in addition to those previously addressed. Defendant stated he had not seen his attorney since the previous Friday, claimed he was unsure about defense strategies and felt he had been rushed to trial.
In response to the court’s inquiry, Thommen indicated he had met with defendant the previous Friday for 20-30 minutes. He was not sure when his most recent meeting before that one had occurred. Thommen indicated he had briefed defendant on the status of the case, how they were going to proceed and discussed basic strategy. He stated he had been representing defendant for between eight months and one year and had met with him approximately six to seven times in that period. Defendant agreed with that assessment.
Defendant was asked if he had any other complaints to make and he did not.
The court found there had been numerous visits between Thommen and defendant, that they had been communicating freely during trial and there had been adequate time for defendant to consult with Thommen. Accordingly, the court denied the motion.
In Marsden, the California Supreme Court held that when a defendant seeks to substitute attorneys, the trial court must give the defendant an opportunity to present evidence and argument in support of his motion. (Marsden, supra, 2 Cal.3d at p. 124.) When a request for substitution is made, the trial court must permit a defendant to explain his reasons before exercising judicial discretion in granting or denying the request. (Ibid.)
A defendant is entitled to discharge his appointed counsel only if the record clearly shows counsel is not providing adequate representation or that defendant and counsel have become so embroiled in conflict that ineffective representation will likely result. (People v. Barnett (1998) 17 Cal.4th 1044, 1085 (Barnett).) We review the trial court’s denial of a Marsden motion for abuse of discretion, and will find such an abuse only where the defendant has shown that the failure to replace appointed counsel would substantially impair defendant’s right to assistance of counsel. (Ibid.)
Defendant contends the court did not satisfy its duty of inquiry at either Marsden hearing. Defendant contends there was “[c]learly . . . confusion between the complaints [] Franco made to the panel, the panel’s report to defense counsel, and defense counsel’s representations to the trial court.” Based on this claimed confusion, defendant argues the court should have inquired of Franco as to the basis of her complaints against Thommen.
First, we disagree with defendant’s characterization that there was confusion on the issue of the complaints made to the panel. Defendant, who was in the hearing, heard Thommen’s report and confirmed that he had spoken with Franco about Thommen’s “representation, the questioning of witnesses and so on and that [defendant] agreed with her going to the panel and making them aware of the problem.” Defendant had an opportunity to speak at the hearing and could have clarified any perceived misstatements on the part of Thommen. It is, after all, defendant’s relationship with counsel that is at issue in a Marsden hearing, not cocounsel’s. Because the problems alleged in this case were based primarily on matters that occurred within the courtroom and “the trial court had personally observed defense counsel’s conduct, it could properly comment on the quality of his performance.” (People v. Hines (1997) 15 Cal.4th 997, 1026.)
Second, defendant’s Marsden motion was not based on Franco’s complaints to the panel. Rather, those complaints were the basis for Thommen’s motion to be relieved as counsel. The basis for defendant’s Marsden motion was that he was concerned he would not “get a fair trial in here being that these guys [the attorneys] are not seeing eye to eye, you know and I’m caught in the middle. . . . So I don’t think I will get a fair trial so I would like to dismiss either one of them so I can get a fair trial.” (Italics added.) The court appropriately explored defendant’s concerns regarding the relationship between Franco and Thommen and how it might affect the effectiveness of Thommen’s representation and determined that the relationship between the attorneys would not affect Thommen’s ability to adequately represent defendant or impact on defendant’s right to a fair trial.
In defendant’s second Marsden motion later that day, defendant indicated he had not met with counsel and discussed trial strategies. In response, Thommen indicated he had met with defendant the previous Friday for approximately 20-30 minutes and had met with defendant on the day trial was assigned out and had discussed basic strategy with defendant on both occasions. Thommen also indicated, and defendant agreed, that he had also met with defendant between five to seven times in the previous eight to 12 months. Accordingly, the court found there had been numerous visits between defendant and Thommen, that defendant had been communicating freely with counsel, and that there had been adequate time spent in consultation.
The denial of the two April 3, 2006, Marsden motions was not an abuse of discretion. “‘Denial of the [Marsden] motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would “substantially impair” the defendant’s right to assistance of counsel’” (People v. Horton (1995) 11 Cal.4th 1068, 1102), i.e., unless the defendant has “demonstrate[d] either inadequate representation or irreconcilable conflict” (People v. Jones (2003) 29 Cal.4th 1229, 1245). Defendant failed to make such a showing. The record demonstrates defense counsel was willing and able to represent defendant’s interests competently. The trial court gave defendant ample opportunity to voice his concerns, and the trial court reasonably found defendant’s complaints did not warrant substitution of counsel. (See Barnett, supra, 17 Cal.4th at pp. 1086, 1092.) The record did not show that Thommen was providing inadequate representation or that defendant and Thommen had become embroiled in an irreconcilable conflict. Accordingly, denying the motions was not an abuse of discretion.
Posttrial Marsden Motion
With respect to the May 26, 2006, posttrial motion, defendant contends the court did not appropriately explore the issue of whether Thommen had consulted expert witnesses and again argues that Franco should have participated in this hearing. We disagree.
After trial was completed, Thommen e-mailed the court. He indicated he was requesting a continuance of sentencing so the court could appoint counsel for the purpose of a motion for new trial on the ground of ineffective assistance of counsel. No formal notice of motion for new trial had been filed. The court indicated in the absence of a formal motion and without some articulated basis for the motion, the court was not inclined to grant a continuance. Thommen stated he had not prepared a motion for new trial because defendant had been attempting to retain counsel for that purpose. He also indicated he did not believe it was appropriate for him to file such a motion since it was going to be based on his alleged incompetence. The court reiterated that it needed an articulable reason for a claim of ineffective assistance of counsel, not a mere statement by defendant that he believed counsel may have been ineffective. The court then allowed defendant to address the issue of Thommen’s ineffectiveness.
Defendant explained he believed Thommen was not representing him to the best of Thommen’s ability because the defense did not “call any expert witnesses to justify or fight the fingerprint or the DNA.” The court responded that there was no evidence that there was a witness who could have challenged the reliability of the fingerprint or DNA evidence. The court also noted Franco was the lawyer responsible for the decisions on the DNA portion of the case. Defendant also claimed counsel could have “called a statistician to go against the stats.”
The court replied, “Any number of people theoretically could have been called. The question is whether or not your lawyers were not competent because they did not do that, number one, and number two, whether that would have made any difference.”
The court denied the motion for continuance, finding there was nothing suggesting the appointment of new counsel was appropriate or that there was any basis for a motion for new trial based on counsel being ineffective. The court expressly noted that Thommen “clearly performed not only competently but well, and his performance was certainly not deficient in any way.”
The court found defendant had not articulated any plausible basis for a motion for new trial except for general complaints regarding possible witnesses that might have been called. The court stated, “That[,] in the court’s mind[,] would not have changed any aspect of the progress of this case or the outcome of this case.”
The court later reiterated the applicable standard for a new trial based on ineffective assistance of counsel. The court stated that, having heard the evidence in the case, it had “absolutely no doubt that the trial produced a just result, but what I want to be clear about, . . . is that a vague claim that there was something else that could have been done does not, in the court’s mind, trigger a requirement for a continuance . . . to look into that matter. It certainly does not require the court to appoint counsel for a review.”
When a defendant requests the appointment of a new attorney based on alleged inadequate representation, the trial court must inquire as to the reasons for the defendant’s request and exercise its discretion in deciding whether to substitute counsel. (People v. Mendoza (2000) 24 Cal.4th 130, 156-157; Marsden, supra, 2 Cal.3d at pp. 123-125.)
A claim of ineffectiveness of counsel may be raised in a new trial motion. (People v. Smith (1993) 6 Cal.4th 684, 693 (Smith).) The standard is the same whether the motion is made before or after trial. (Id. at p. 696.) “[S]ubstitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel . . . .” (Ibid.)
“‘If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other hand, the defendant’s claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a “colorable claim” of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial.’” (Smith, supra, 6 Cal.4th at pp. 692-693.)
A court does not, however, have to inquire into every vague complaint raised by a defendant. When a defendant makes vague allegations against counsel, the court has no further duty than to listen to defendant without interruption and consider any evidence presented by defendant or counsel. (People v. Silva (2001) 25 Cal.4th 345, 367.)
Despite defendant’s claim that there were expert witnesses that might have been called, defendant “‘identifies no exculpatory or impeachment evidence that counsel could have revealed by further questioning of prosecution witnesses [or examination of defense experts] and that would have produced a more favorable result at trial. [¶] . . . Such claims must be supported by declarations or other proffered testimony establishing both the substance of the omitted evidence and its likelihood for exonerating the accused. [Citations.] We cannot evaluate alleged deficiencies in counsel’s representation solely on defendant’s unsubstantiated speculation.’ [Citations.] . . . The record does not establish defense experts would have provided exculpatory evidence if called, and we decline to speculate in that regard as well.” (People v. Bolin (1998) 18 Cal.4th 297, 334.) Accordingly, we agree with the trial court defendant did not make a “colorable claim” that counsel’s performance was prejudicially inadequate.
The trial court gave defendant numerous opportunities to explain his differences with counsel. In response to each complaint, the court either explained the matter to defendant or examined counsel regarding the complaint. Thus, the court satisfied its duty under Marsden. “After listening to defendant’s explanation of his reasons for concluding that his counsel had performed inadequately, the trial court reasonably concluded that defendant had not made a ‘colorable claim’ that counsel’s performance at trial was prejudicially inadequate. The trial court did not abuse its discretion in denying defendant’s request for new counsel to argue the issue of inadequacy.” (People v. Diaz (1992) 3 Cal.4th 495, 574.)
II
Defendant next contends that, notwithstanding the California Supreme Court decisions in Black II and Sandoval, his sentence for count three should be reduced from the eight-year upper term to a six-year middle term, and that his sentence for the use of a deadly weapon enhancement should be reduced from 10 years to four years. The court imposed these upper-term sentences based on defendant’s prior felony record, which included four prior felony convictions in the years between 1992 and 1996.
Defendant also claims the “handwriting [is] on the wall” regarding the recidivist exception recognized in Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350]. The Sixth Amendment jury trial guarantee does not apply to prior convictions that are used to impose greater punishment. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 490 147 L.Ed.2d 435; Blakely v. Washington (2004) 542 U.S. 296, 301159 L.Ed.2d 403; Cunningham v. California (2007) 549 U.S. 270, 274-275 166 L.Ed.2d 856;Black II, supra, 41 Cal.4th at pp. 818-820.) Whether the handwriting is on the wall for Almendarez-Torres or not, we are bound by that decision until the writing is in an opinion overruling that decision. We are also bound by the decisions in Black II and Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III
Defendant’s final contention is that the trial court erred under section 654 in imposing a great bodily injury enhancement on counts one, two and three. Counts one, two and three all related to the rape and attempted murder of Susan C. Defendant notes the courts of appeal are not in agreement on the issue of whether section 654 applies to enhancements and that the Supreme Court has not resolved this issue. He notes, however, that in People v. Coronado (1995) 12 Cal.4th 145, 156-157, the Supreme Court “suggested . . . that application of section 654 to enhancements may turn on whether the enhancement is one which ‘go[es] to the nature of the offender’ or one which ‘go[es] to the nature of the offense . . .,’ with this latter class of enhancements being ‘exemplified’ by section 12022.7.” Assuming, without deciding that section 654 applies to enhancements, defendant’s contention still fails.
Section 654 protects against multiple punishment, and its proscription is applicable “where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.]” (People v. Perez (1979) 23 Cal.3d 545, 551.) “It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’” (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison); see also People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
The question of whether defendant entertained multiple criminal objectives is a factual one for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) The court’s express or implied findings will be upheld on appeal if supported by substantial evidence. (Ibid.) We review the evidence in the light most favorable to the People and presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. (Id. at pp. 1312-1313.)
“The purpose of section 654 is to ensure that a defendant’s punishment is commensurate with his culpability and that he is not punished more than once for what is essentially one criminal act.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252 (Kwok).) Section 654 has been applied both to circumstances where multiple violations arise out of a single act or omission and to cases where a “‘course of conduct’” violates several statutes. (See Kwok, supra, 63 Cal.App.4th at p. 1252, citing Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal).) “[W]hen a defendant maintains one criminal objective he may be convicted and punished for each successive crime of violence against the same victim.” (Kwok, supra, 63 Cal.App.4th at p. 1256, referring to People v. Trotter (1992) 7 Cal.App.4th 363, 366-367 (Trotter) and Harrison, supra, 48 Cal.3d at pp. 337-338.)
Multiple crimes do not comprise a single act for which separate punishment is prohibited by section 654 if the defendant had a chance to reflect between offenses and each offense created a new risk of harm to the victim. (People v. Felix (2001) 92 Cal.App.4th 905, 915-916; Kwok, supra, 63 Cal.App.4th at pp. 1255-l256.) Even offenses separated by less than a minute may be properly viewed as separate acts, and punished separately, when each successive offense creates a new risk of harm. (Trotter, supra, 7 Cal.App.4th at pp. 366-368; see also Kwok, supra, 63 Cal.App.4th at pp. 1255-1256.)
In Harrison, the California Supreme Court held that in connection with sex offenses, each sexual assault may be viewed as a separately punishable criminal act even if the defendant claims that all the offenses were committed to obtain sexual gratification. The Supreme Court observed “that such a ‘broad and amorphous’ view of the single ‘intent’ or ‘objective’ needed to trigger [section 654] would impermissibly ‘reward the defendant who has the greater criminal ambition with a lesser punishment.’ [Citation.] Rather, in keeping with the statute’s purpose, the proper view [is] to recognize that a ‘defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.’” (Harrison, supra, 48 Cal.3d at pp. 335-336.)
The Harrison rule has been extended to sequential crimes of violence. (Trotter, supra, 7 Cal.App.4th at pp. 366-368; Kwok, supra, 63 Cal.App.4th at pp. 1255-1257; People v. Nubla (1999) 74 Cal.App.4th 719, 730-731.) “[W]hen a defendant maintains one criminal objective he may be convicted and punished for each successive crime of violence against the same victim.” (Kwok, supra, 63 Cal.App.4th at p. 1256.) This rule is particularly applicable if the defendant had an opportunity to reflect between offenses, and each successive offense creates a new risk of harm. (Trotter, supra, 7 Cal.App.4th at pp. 367-368.)
Here, the trial court’s findings are supported by substantial evidence. This was a case in which defendant committed successive acts of violence against Susan C. Defendant entered her bedroom with a raised knife and tried to stab her. After he struggled with her and lost the knife, he began choking her. Then he stopped choking her to “try something new” and placed a pillow over her face and pressed down so hard her jaw was broken. Susan was able to get him off of her and started talking to him, begging him not to hurt her or kill her and to take anything he wanted but to please leave. He then began to undress her himself, digitally penetrated her, asked if he could orally copulate her and then raped her.
“[T]his was not a case where only one volitional act gave rise to multiple offenses.” (Trotter, supra, 7 Cal.App.4th at p. 368.) This was not a case where the commission of one crime facilitated the commission of another. (See, e.g., Neal, supra, 55 Cal.2d at p. 20 [attempt to murder the victim by committing arson].) This was not a case where defendant’s actions were spontaneous or uncontrollable. Rather, this was a case where defendant committed successive acts of violence against Susan C. between which he had time to pause and reflect about what he was doing. Each act that resulted in great bodily injury to Susan was from a separate assault, a knife, a choking and an attempted suffocation. These acts were volitional and calculated. There were breaks in the course of the assault, moments in which reflection was possible. (See Trotter, supra, 7 Cal.App.4th at p. 368.) Under these circumstances, the trial court was entitled to conclude that the attack on Susan did not comprise a single “act” to which section 654 applies. Accordingly, there was no error in imposing sentences for each of the great bodily injury enhancements.
Disposition
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., HULL, J.