Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles C. Lee, Judge, Los Angeles County Super. Ct. No. GA064151.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Alexander Francis appeals from the judgment entered following a jury trial that resulted in his convictions for assault likely to produce great bodily injury, assault on a peace officer, vandalism, and battery. Francis was sentenced to a prison term of 13 years.
Francis contends: (1) his conviction for assault on a peace officer is not supported by substantial evidence; (2) the trial court erred by failing to give a unanimity instruction; (3) to the extent the verdict was based upon a factually inadequate theory, the evidence was insufficient; (4) the trial court abused its discretion by denying Francis’s Romero motion; and (5) sentence on the vandalism conviction must be stayed pursuant to Penal Code section 654. We agree that the sentence on count 4, vandalism, must be stayed. In all other respects, we affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
On December 25, 2005, at approximately 6:00 p.m., Virginia Uchiyamada and her son, Lance Mitsui, drove to a San Gabriel restaurant to pick up a take-out food order for the Christmas holiday. They parked in a lot adjacent to the restaurant.
As they exited the car, they heard Francis “ranting” as he came down the street approaching their location, saying “fucking BMW” or similar words. Francis pointed at Mitsui, yelling, “You fucking Asians, you fucking Chinese” and “fuck you, fuck you Chinese, BMW, God damn Chinese.” Francis got off his bicycle and came towards Mitsui and Uchiyamada, apparently enraged. He screamed, “[G]et the fuck out of my country. This is my country. I was here first” and “[y]ou don’t belong here.” Mitsui told Francis to back off. Francis pulled up his shirt and felt at his waistband, as if reaching for a weapon. Francis then ran towards the victims menacingly, “like a linebacker,” with his hands in fists. Mitsui and Uchiyamada backed away. At the corner of the driveway, Francis reached into a trash can, pulled out a one-half full trash bag, and heaved it at the victims. The bag landed within a foot of the victims, who moved to avoid it.
Uchiyamada fled. Mitsui, who had received some martial arts training as a child, continued to back up. Mitsui side kicked Francis in an effort to force him to back off, and to let him know he would defend himself if necessary. Francis was knocked back a step. Francis, however, did not back off but instead kept coming at Mitsui. Mitsui continued to retreat, backing up for approximately 25 feet until he bumped into a lamp post at the perimeter of a fenced patio. Francis approached to within six feet of Mitsui. Mitsui grabbed Francis around the neck and threw him to the ground. Francis attempted to bite Mitsui’s shoulder. Mitsui tried to pin Francis to the ground, but Francis continued to kick and swing at Mitsui, knocking Mitsui’s glasses off. Francis then bit Mitsui’s right index finger, cutting almost to the bone and crushing part of Mitsui’s nail.
Meanwhile, Uchiyamada sought assistance from persons inside the restaurant. Three men accompanied her outside and tackled and held Francis. Once Francis had calmed, two of the three men returned to the restaurant.
Uchiyamada helped Mitsui search for his glasses, while at the same time attempting to wrap his bleeding finger with tissue. When Uchiyamada looked for the glasses in the area near Francis’s head, Francis kicked her thigh with his heavy-soled shoes. Francis then telephoned police and stated he was being attacked by Asian gang members.
The victims did not belong to a criminal street gang.
Police officers arrived on the scene and spoke to the parties. Francis was yelling profanities at the victims, who were approximately 24 feet away. He smelled of alcohol and was aggressive, clenching his fists, and moving around. Officers decided to handcuff Francis for his own and officers’ safety because of his behavior. He refused to cooperate, struggling with three officers who attempted to handcuff him. He was arrested and transported to the police station.
Officer Nhat Huynh was assigned to transport Francis to the county jail later that evening. After Huynh placed Francis in the police car, Francis kicked out the window of the police vehicle. The flying glass cut Huynh’s eyeball.
2. Procedure.
Trial was by jury. Francis was convicted of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), assault upon a peace officer (§ 245, subd. (c)), misdemeanor vandalism (§ 594, subd. (a)), and battery (§ 242). The jury acquitted Francis of battery with serious bodily injury (§ 243, subd. (d)). The trial court found true allegations that Francis had suffered a prior conviction of a serious or violent felony (§§ 667, subds. (a), (b) – (i), 1170.12, subds. (a) – (d)). It sentenced Francis to a term of 13 years in prison. It also imposed a restitution fine, a parole revocation fine, and a court security assessment. Francis appeals.
DISCUSSION
1. Substantial evidence supports Francis’s conviction for assault on a peace officer.
Francis contends the evidence was insufficient to support his conviction for assault on a peace officer. He urges that no evidence established he knew his act of kicking out the police car window would directly and probably result in the application of physical force on Officer Huynh. We conclude the evidence was sufficient.
a. Additional facts.
Officer Huynh testified that he removed Francis from a booking cell at approximately 9:00 or 10:00 p.m. Huynh walked Francis, whose hands were handcuffed behind his back, to a lot containing four or five police vehicles. As Huynh attempted to place Francis in a patrol vehicle, Francis said, “I’m not going, I didn’t do it,” or words to that effect, and “stiffened up,” making it difficult for Huynh to get him in the police car. Huynh told Francis he had no choice. He placed Francis in the rear right seat of the car, fastened Francis’s seatbelt, and closed the door. The police car was parked next to another police vehicle. Huynh stood between the two parked policed cars, inches away from the vehicle in which Francis was seated. “[A] fraction of a second” or “just an instant” later, just as Huynh “was about to turn away from the vehicle,” he heard a bang on the car door. It was dark and Huynh could not see inside the car. Huynh turned back toward the police car to determine what caused the noise, and “saw glass fly in [his] face.” The flying glass cut Huynh’s eyeball, necessitating hospital care.
b. Discussion.
When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine “ ‘whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Carter (2005) 36 Cal.4th 1215, 1257-1258.) “We draw all reasonable inferences in support of the judgment. [Citation.]” (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) “ ‘The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.” ’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66.)
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) “ ‘[T]he intent for an assault with a deadly weapon is the intent to attempt to commit a battery, a battery being “any willful and unlawful use of force or violence upon the person of another.” [Citation.]’ ” (People v. Colantuono (1994) 7 Cal.4th 206, 214, fn. omitted.) Assault is a general intent crime and “does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur.” (People v. Williams (2001) 26 Cal.4th 779, 788, 790.) The intent to cause a particular or severe injury, or to injure in the sense of inflicting bodily harm, is not necessary. (People v. Colantuono, supra, 7 Cal.4th at p. 214.) “Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams, supra, at p. 790.) “Thus, ‘a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery.’ [Citation.]” (People v. Hayes (2006) 142 Cal.App.4th 175, 180.) Mere recklessness or criminal negligence is insufficient, “because a jury cannot find a defendant guilty of assault based on facts he should have known but did not know [citation].” (People v. Williams, supra, 26 Cal.4th at p. 788.)
Here, the evidence showed Francis kicked out the window of the police car within seconds of being placed inside the vehicle, before Officer Huynh had time to move away from the car. Francis certainly was aware of Huynh’s location between the police cars just after he was belted in. Given the tight space between the two police vehicles, Francis must have known Huynh was very close to the vehicle in which Francis was seated. There was a lapse of a few seconds, at most, between the time Francis was placed in the car and the kick. Huynh heard the bang on the car door within a fraction of a second or an instant after he placed Francis in the car. The glass shattered within a “couple seconds” after he heard the first thump. Therefore, the jury could reasonably have inferred that Francis necessarily knew Huynh was very close to the car when he kicked out the window seconds after being seated inside. Moreover, there was no evidence that Francis’s view of Huynh was obstructed. In short, the jury could readily infer that Francis was aware of facts sufficient to establish that the act of kicking out the window would probably and directly result in the application of physical force against Officer Huynh. (See generally People v. Hayes, supra, 142 Cal.App.4th at p. 180 [sufficient evidence supported battery conviction where appellant intentionally kicked concrete ashtray with great force, knowing victim was standing beside the ashtray].)
Francis offers three primary arguments in support of his contention the evidence was insufficient. First, he contends that because Officer Huynh could not see into the police car, “it is inconceivable that appellant was able to see outside in order to see whether Huynh was still by the rear passenger door . . . .” We are unpersuaded. The area was illuminated by streetlights. It is common knowledge that a person looking into a vehicle window at nighttime may be unable to see the interior of the vehicle, whereas a person looking out from the same vehicle often has a clear view of the area outside the vehicle. Moreover, as we have discussed, even assuming arguendo that Francis could not clearly see Huynh, the jury could infer Francis knew Huynh’s location from the timing of the incident and the configuration of the parked cars.
Second, Francis contends there was “no reason for [him] to have believed that Huynh remained outside the rear passenger door” after placing appellant inside the car. Again, we disagree. As we have noted, the time lapse between placement of Francis in the car and Francis’s breaking of the window was minimal, suggesting to a reasonable juror that Huynh would not yet have moved from his location outside the car. As Huynh described the incident, he closed the door; heard a bang on the door, causing him to stop; looked towards the door to see what had caused the noise; and “seconds later the glass flew.”
Third, Francis contends that in order to kick out the window, he would have had to look away from Officer Huynh’s direction. Even assuming Francis is correct, there is no requirement the defendant must observe the victim at the instant he undertakes the assaultive action. The jury could have reasonably inferred Francis observed Huynh, and immediately thereafter turned and kicked out the window, expecting that Huynh would still be in the same location.
2. A unanimity instruction was not required.
Francis next contends the trial court erred by failing to give a unanimity instruction on count 1 (assault by means likely to produce great bodily injury on Mitsui), because the jury could have based its verdict on either Francis’s biting of Mitsui’s finger, or Francis’s act of throwing the trash bag at Mitsui and his mother. This contention lacks merit.
A jury verdict must be unanimous in a criminal case. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Where the accusatory pleading charges a single offense, and the evidence shows the defendant committed more than one act that could constitute that offense, the jury must be instructed that the defendant can be found guilty only if the jurors unanimously agree the defendant committed the same, specific act comprising the crime. (Ibid.; People v. Melhado (1998) 60 Cal.App.4th 1529, 1534; People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.) The unanimity requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense that all jurors agree he or she committed. (People v. Zavala (2005) 130 Cal.App.4th 758, 768; People v. Russo, supra, 25 Cal.4th at p. 1132.) “In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (Id. at p. 1135.) Where required, a unanimity instruction must be given sua sponte. (People v. Dieguez, supra, 89 Cal.App.4th at pp. 274-275.)
A unanimity instruction is not required when the evidence shows one criminal act or multiple acts in a continuous course of conduct, i.e., where the acts alleged are so closely connected as to form part of one continuing transaction or course of conduct. (People v. Stankewitz (1990) 51 Cal.3d 72, 100; People v. Jantz (2006) 137 Cal.App.4th 1283, 1292; People v. Lopez (2005) 129 Cal.App.4th 1508, 1533-1534; People v. Dieguez, supra, 89 Cal.App.4th at p. 275.) The “continuous conduct” exception applies, inter alia, when the defendant’s acts are so closely connected that they form parts of one and the same transaction (People v. Jenkins (1994) 29 Cal.App.4th 287, 298-299; People v. Avina (1993) 14 Cal.App.4th 1303, 1309.) The continuous conduct rule also applies when a defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for jurors to distinguish between them. (People v. Stankewitz, supra, 51 Cal.3d at p. 100.)
In the instant case, there was no reversible error for three reasons. First, the trash-bag throwing was not an act that could have constituted the charged crime, i.e., assault by means of a deadly weapon or force likely to produce great bodily injury. To prove a violation of section 245, subdivision (a)(1), the People must present evidence that the defendant used either a deadly weapon or force likely to produce great bodily injury. (See People v. Aguilar (1997) 16 Cal.4th 1023, 1028; CALCRIM 875.) It is axiomatic that, under the facts of this case, the trash bag could not have constituted a deadly weapon. Likewise, as Francis urges in regard to another point, there was no evidence that the act of throwing the trash bag could have caused great bodily injury. The trash bag was a large bag, half full of trash; Francis threw it at the victims from a distance of approximately five or six feet away. There was no evidence that the bag contained heavy, sharp, or otherwise dangerous items. There was no evidence Francis’s act of throwing the bag caused any injury whatsoever. The prosecutor never suggested that the bag-throwing was likely to produce great bodily injury. Under these circumstances, where there was no showing that the trash bag toss could have constituted a violation of section 245, subdivision (a)(1), a unanimity instruction was not required.
Francis asserts that during closing argument, the prosecutor alluded to both the biting and the trash bag incident as they “pertained to the assault charge.” This assertion is not borne out by the record. In the portion of the prosecutor’s argument cited by Francis, the prosecutor never suggested, explicitly or implicitly, that the trash bag toss constituted an act that violated section 245, subdivision (a)(1). Francis also points out that at sentencing, the prosecutor argued to the court that a thrown trash bag could be a weapon and could cause great bodily injury. The prosecutor’s argument in this regard was unpersuasive. More significantly, this argument was not made to the jury, and therefore had no bearing on jurors’ consideration of the case.
Second, even assuming arguendo that Francis’s act of throwing the bag could have constituted a violation of section 245, subdivision (a)(1), no unanimity instruction was required. The trash-bag-throwing and the finger-biting occurred during a continuous transaction. (See People v. Dieguez, supra, 89 Cal.App.4th at p. 275 [defendant made a series of false statements during a medical visit in order to fraudulently obtain workers’ compensation benefits; continuous conduct exception applied because all the statements were connected in time and purpose, were made at the same appointment, were interrelated, were all aimed at a single objective, and section 654 barred multiple punishment].) The two incidents occurred close in time and all during one sustained verbal and physical assault on the victims. (See generally People v. Jantz, supra, 137 Cal.App.4th at pp. 1292-1293.) The parties did not treat the trash-bag throwing incident as a criminal offense, and therefore Francis did not offer distinct defenses to the two acts. (Cf. People v. Stankewitz, supra, 51 Cal.3d at p. 100 [unanimity instruction not required where defendant offers same defense to each act]; People v. Thompson (1984) 160 Cal.App.3d 220, 226.)
Third, even assuming the trial court erred, any possible error was harmless under any standard. (See People v. Smith (2005) 132 Cal.App.4th 1537, 1545 [applying Chapman harmless beyond a reasonable doubt standard to erroneous failure to give unanimity instruction, but observing existence of a split of authority on the issue]; People v. Frederick (2006) 142 Cal.App.4th 400, 419.) As noted, there was no evidence the bag contained dangerous materials. Neither the People nor defense counsel suggested during argument that the trash-throwing constituted a crime or was likely to cause great bodily injury. The prosecutor’s argument was limited to urging that the bite constituted a serious injury. The evidence Mitsui’s finger was bitten was undisputed. Defense counsel pointed out during argument that the trash bag was “not exactly what they call a dangerous or deadly weapon” and that throwing the bag would not have caused great bodily injury. It is inconceivable that jurors would have discredited evidence of the biting, and instead convicted Francis on the basis of the trash bag toss alone. Under these circumstances it is clear beyond a reasonable doubt that the jurors would not have relied upon the trash-throwing incident as a basis for guilt on count 1.
Francis argues that the failure to give a unanimity instruction was prejudicial because the jury acquitted him of battery with serious bodily injury. Therefore, Francis reasons, because the jury found no serious bodily injury, it may have based the guilty verdict on the assault charge on the trash bag throw. We disagree. It is far more reasonable to conclude that the jury decided the bite to the victim’s finger was likely to, but in this case did not, produce great bodily injury. The victim did not receive stitches for the wound, which apparently had healed by the time of trial with no residual ill effects.
3. Francis was not convicted on a factually inadequate theory.
Francis argues that, if his conviction for assault by means likely to produce great bodily injury was premised on his act of throwing the trash bag, the evidence was insufficient to prove the offense. We agree that, if the assault conviction was premised on Francis’s act of throwing the trash bag, the evidence would have been insufficient. However, there is no reason to believe this was so. The prosecutor did not argue to the jury that it could base an assault conviction on the trash bag toss alone. Defense counsel argued the trash bag was not a deadly weapon. The jury was not erroneously instructed on an invalid factual theory. As we have discussed, the evidence Francis bit Mitsui’s finger was undisputed. In short, there is no reason to suspect the jury based its verdict on the thrown trash bag rather than the bite to Mitsui’s finger.
Moreover, even in cases in which a jury is presented with a factually inadequate as well as a factually adequate theory, reversal is not necessarily required. “[W]hen one of the theories presented to a jury is factually inadequate, such as a theory that, while legally correct, has no application to the facts of the case, . . . we must assess the entire record, ‘including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.’ [Citation.] We will affirm ‘unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.’ [Citation.]” (People v. Perez (2005) 35 Cal.4th 1219, 1233.) “[I]f there are two possible grounds for the jury’s verdict, one unreasonable and the other reasonable, we will assume, absent a contrary indication in the record, that the jury based its verdict on the reasonable ground.” (People v. Guiton (1993) 4 Cal.4th 1116, 1127.) As we have made clear, in the instant case the record does not suggest the jury based its verdict on the unreasonable ground that the trash bag throw was likely to produce great bodily injury.
4. The trial court did not abuse its discretion by denying Francis’s Romero motion.
a. Additional facts.
In a bifurcated proceeding, the trial court found Francis had suffered a prior serious or violent felony conviction for robbery.
Francis filed a Romero motion requesting that the trial court strike the prior conviction allegation in the interests of justice, on the following grounds. (1) His prior conviction for robbery was based on “unusual circumstances.” He had been drinking at a bar while the bartender was counting the cash register receipts. When the bartender was distracted speaking to another patron, Francis jumped the counter and took $500 from the register. He was detained by other bar patrons until police arrived. He did not use a weapon. (2) Francis had a lengthy mental health history, including a 1995 diagnosis of bipolar affective disorder with psychotic features, alcohol abuse, and personality disorder NOS with schizoid features. When arrested for the instant matter, a police employee noted on a form that Francis had obvious signs of mental illness. A mental health screening form completed the day after the crimes noted that Francis exhibited bizarre or unusual behavior and showed obvious signs of medical or mental illness.
After considering the parties’ arguments, the trial court denied the motion. It observed that Francis had a lengthy criminal record and, as a result of the instant crimes, had “three pending probation violation matters.” Francis had performed poorly on probation and parole. It also observed that the trial court in a 2004 case had exercised its discretion to strike a prior conviction allegation, but Francis had nonetheless reoffended. The court reasoned that it had to have “legitimate reasons” to strike a prior conviction allegation. In the trial court’s view, Francis fell clearly within the spirit of the Three Strikes law. Accordingly, it sentenced Francis to the midterm of four years on count 3 (assault on a peace officer), doubled pursuant to the Three Strikes law (§§ 667, subds. (b) – (i), 1170.12, subds. (a) – (d)), plus a five-year serious felony enhancement pursuant to section 667, subdivision (a), for a total of 13 years.
b. Discussion.
Francis urges that the trial court failed to consider the mitigating factors presented by the defense, and, to the extent the court did consider such mitigating factors, it abused its discretion by denying the motion. We disagree.
First, it is clear the trial court did consider the factors presented by Francis. The court noted that it had read and considered both Francis’s written Romero motion and his separate sentencing brief. Attached to Francis’s motion were exhibits documenting his mental health issues, as well as a probation report describing the prior robbery. At the hearing on the Romero motion, defense counsel expressly argued that the instant offenses were the result of Francis’s mental illness and intoxication, and referred the trial court to the medical records attached to the Romero motion. Defense counsel further urged that in the prior “strike” robbery Francis had not used a weapon, and that the circumstances had been more consistent with a theft than a robbery. We presume the trial court considered all relevant factors in the absence of an affirmative record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) Here, the factors at issue were expressly argued before the court, both in oral argument and in the written motion which the court stated it had read and considered. Thus, the record demonstrates the trial court did consider the factors now addressed by Francis. The trial court expressly stated that it knew it had discretion to strike the prior conviction allegation. The fact the court focused its explanatory comments on a particular aspect of appellant’s crimes – here, his criminal history -- “does not mean that it considered only that factor.” (Ibid.) There is no merit to Francis’s contention that the trial court failed to consider all the relevant factors.
Nor can we conclude the court abused its discretion by denying the motion. Francis argues that the denial of the motion “was tantamount to a refusal to consider pertinent facts about appellant’s documented mental illness.” In other words, Francis contends the trial court was required to strike the prior conviction allegation in light of his mental illness and other factors addressed above. Again, we disagree.
In the furtherance of justice, a trial court may strike a prior conviction allegation. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 504.) A trial court’s failure to strike a prior conviction allegation is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374-376.) Under that standard, the party seeking reversal must “ ‘clearly show that the sentencing decision was irrational or arbitrary.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) It is not enough to show that reasonable people might disagree about whether to strike a prior conviction. (People v. Carmony, supra, at p. 378.) Only extraordinary circumstances justify a finding that a career criminal is outside the Three Strikes law. (Ibid.) Therefore, “the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Ibid.)
When considering whether to strike prior convictions, the relevant factors a court must consider are “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) The Three Strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm . . . . [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (People v. Carmony, supra, 33 Cal.4th at p. 378.) As noted, we presume the trial court considered all of the relevant factors in the absence of an affirmative record to the contrary. (People v. Myers, supra, 69 Cal.App.4th at p. 310.)
Francis’s criminal history was lengthy and serious, comprised of the following: in 1987, convictions for misdemeanor trespass with injury to property and misdemeanor theft of personal property; in 1990, convictions for misdemeanor burglary and felony robbery; in 1991, a conviction for petty theft with a prior; in 1992, a conviction for obstructing or resisting a public officer; in 1993, a conviction for misdemeanor disturbing the peace; in 1994, a conviction for misdemeanor battery; in 1998, a conviction for felony petty theft with a prior; in 2003, a conviction for misdemeanor battery; and in 2004, convictions for being under the influence of a controlled substance and felony possession of a controlled substance. Francis was on probation at the time he committed the instant crimes. As the probation report stated, Francis’s actions and history demonstrate he presents a “significant threat to the safety and well-being of others.” Francis’s “conduct as a whole was a strong indication of unwillingness or inability to comply with the law. It is clear from the record that prior rehabilitative efforts have been unsuccessful for defendant. Indeed, defendant’s prospects for the future look no better than the past, in light of defendant’s record of prior offense and reoffense . . . . There is no indication from the record here that the court failed to consider the relevant factors or that it abused its discretion in determining that, as a flagrant recidivist, defendant was not outside the spirit of the three strikes law. [Citation.]” (People v. Philpot (2004) 122 Cal.App.4th 893, 906-907.)
The fact the prior strike conviction occurred approximately 15 years before the charged crimes did not compel the court to strike the prior. The trial properly took into account Francis’s significant criminal history and periods of incarceration. (See generally People v. Philpot, supra, 122 Cal.App.4th at pp. 906-907.) Nor did the fact Francis apparently suffers from mental illness require the court to exercise its discretion in favor of striking the prior conviction allegation. Certainly, the fact a defendant suffers from a mental illness may be a significant mitigating factor (see Cal. Rules of Court, rule 4.423(b)(2)). Nonetheless, we defer to the trial court’s ruling when it is not capricious, arbitrary, or outside the bounds of reason. The record here shows the trial court carefully considered the parties’ arguments, which necessarily included the effect of Francis’s mental illness and criminal history. The trial court was also obliged to take into account society’s interests. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433.) We cannot say the court’s refusal to strike the prior conviction allegation was irrational or arbitrary. “It is not enough to show that reasonable people might disagree about whether to strike one or more of [a defendant’s] prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.” (People v. Myers, supra, at p. 310; People v. Romero, supra, at p. 1434.)
5. Sentence on the vandalism conviction must be stayed pursuant to section 654.
The trial court sentenced Francis to a term of four years on count 3, assault on a peace officer, as well as a concurrent, six-month term on count 4, vandalism. Both convictions were premised on Francis’s act of kicking out the window of the police vehicle. Francis contends that the imposition of sentence on both convictions was improper under section 654 because the assault and the vandalism were premised on a single act of kicking out the window, undertaken pursuant to a single intent and objective. This contention has merit.
“Section 654, subdivision (a), provides in pertinent part, ‘[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 term of imprisonment, but in no case shall the act or omission be punished under more than one provision.’ Section 654 therefore ‘ “precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. ‘Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.’ [Citation.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1142-1143; People v. Le (2006) 136 Cal.App.4th 925, 931.) “ ‘[I]f all 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.]” [Citation.]’ [Citations.]” (People v. Jones, supra, at p. 1143.)
The People urge that multiple punishment may be imposed because Francis “engaged in two separate kicks, the first with the primary purpose of damaging the door and the second with the intent of injuring Officer Huynh after Officer Huynh responded to the first kick by turning around.” The problem with this theory is that the first kick did not constitute a criminal offense. There was no evidence the first kick caused any damage, and therefore could not have formed the basis for either the vandalism or the assault counts. To the contrary, there was only one act that constituted two criminal offenses: the kick that broke the window. Further, there was no evidence, beyond pure speculation, that Francis acted with more than one intent and objective. Accordingly, section 654’s prohibition on multiple punishment applies. Rather than imposing a concurrent sentence for the vandalism conviction, the trial court should have stayed the sentence on that count. (See People v. Reed (2006) 38 Cal.4th 1224, 1227; People v. Hester (2000) 22 Cal.4th 290, 294; People v. Hernandez (2005) 134 Cal.App.4th 1232, 1239.) We order the abstract of judgment modified accordingly.
DISPOSITION
The judgment is modified to reflect that Francis’s sentence on count 4, vandalism, is stayed pursuant to Penal Code section 654. The Clerk of the Superior Court is directed to prepare a corrected minute order and a corrected abstract of judgment and forward them to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.