Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. No. 1225597 John G. Whiteside, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
Before Dawson, Acting P.J., Hill, J., and Kane, J.
OPINION
A jury convicted appellant Jesus Contreras Galvan of attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 1), kidnapping (§ 207; count 2), battery on a spouse or cohabitant (§ 273.5, subd. (a); count 3) and making a criminal threat (§ 422; count 5), and acquitted him of assault with a deadly weapon (§ 245, subd. (a)(1)). The court imposed a life term with the possibility of parole on count 1, plus a term of one year eight months, consisting of one year on count 3 and eight months on count 5. The court also imposed, and stayed pursuant to section 654, the five-year midterm on count 2.
All statutory references are to the Penal Code.
On appeal, appellant contends (1) the court erred in failing to stay execution of sentence on counts 3 and 5 pursuant to section 654, and (2) the abstract of judgment and sentencing minute order incorrectly state the sentence imposed on count 1. We will modify the judgment to stay execution of sentence on count 5, direct the court to correct the minute order and abstract of judgment, and, as modified, affirm.
In accordance with the usual rule of appellate review, we summarize the evidence in the light most favorable to the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Sylvia Chavarria testified that on April 4, 2007 (April 4), she and appellant went together to the home of appellant’s parents. Appellant and Chavarria were dating at the time, they at one time lived together and they have a child together.
Except as otherwise indicated, the factual statement is taken from Chavarria’s testimony.
Chavarria waited outside, at appellant’s direction, while appellant entered his parents’ house. When appellant came back out, approximately 30 minutes later, he was angry and appeared to be under the influence of methamphetamine.
Chavarria was waiting “[o]n the side” of the house. Appellant grabbed her by the hood of her sweatshirt, held a nail to her neck and “dragged” her to an alley behind the house. There, she found herself lying on the ground on her back, with appellant “leaning over [her][,] choking [her].” Chavarria lost consciousness “for a second at least.” She regained consciousness, possibly as a result of appellant slapping her, at which point appellant “forced [her] to walk to the park,” “[b]y holding a nail to [her] neck and threatening [her].” Appellant “told [Chavarria] not to scream or try to run or else he would stab [her].”
After some period of time, the length of which Chavarria was not able to estimate, she and appellant arrived at “the rock embankment of the river ….” There, appellant “dragged [Chavarria] into the river” and pushed her head underwater. Chavarria was underwater for approximately ten seconds before she “was able to grab a hold of [appellant’s] jacket and pull [herself] up.” At that point, appellant got Chavarria in a headlock, and two police officers who had arrived on the scene were yelling at appellant to let Chavarria go. Eventually, appellant complied.
Cyndi Campbell testified that on April 4, she was driving in her car when she saw appellant and a woman fighting. The woman was crying and “struggling to get away.” Campbell drove a short distance before stopping and talking to a man standing outside a house. After speaking to him, she was not sure if he had called the police, so she “drove around” the area and, approximately five minutes later, returned to where she had originally seen the struggle, at which point she “noticed [appellant and the woman] in the alley.” Appellant, “had his arm around [the woman’s] neck, and she was still struggling to get away.” Campbell called 911.
Except as otherwise indicated, the remainder of the factual statement is taken from Campbell’s testimony.
Campbell continued to drive around, waiting for the police to arrive. She again saw appellant and the woman; they were “walking towards the park.” Appellant was “keeping [the woman] … very close … to him so she couldn’t get away ….” Shortly thereafter, Campbell encountered a policeman, and told him where she has last seen appellant and the woman.
City of Modesto Police Officer Billy Hamilton testified that on April 4, while responding to a report of a man and a woman fighting, he made contact with a witness who told him she had seen the “suspect and victim walking near the entrance of East La Loma Park ….” The officer drove into the park and saw appellant and a woman. Appellant “had … his arm around her neck in like a headlock position,” and he was walking quickly and was pulling her along.” Appellant looked back, saw the officer and, still holding the woman in a headlock, began running, dragging the woman.
The remainder of our factual statement is taken from Officer Hamilton’s testimony.
Officer Hamilton lost sight of appellant and the woman for approximately three seconds as the pair went over the creek embankment. The officer stopped his car, got out and went down to the creek. As he got over the embankment, he saw appellant and the woman “in the middle of the creek,” in approximately three feet of water. Appellant still had the woman in a headlock, and she was crying hysterically. At that point, appellant “grabbed [the woman] by the head, pushed her under the water and held her there.” The woman struggled, and was able to get her head above the water after approximately five to ten seconds. Officer Hamilton “deployed his [taser]” but he was “out of range.”
At that point, the woman was able to stand. Appellant was still holding her in a headlock, and he began “running” up the stream, dragging the woman with him. By this time, Officer Daniel Phillips had arrived on the scene. The two officers gave chase, but lost sight of appellant and the woman for approximately two seconds as appellant dragged the woman behind a bush. When the officers regained sight of the pair, appellant was still holding the woman with his arm around her neck. Officer Hamilton repeatedly ordered appellant to let the woman go and, after approximately one minute, “she was able to get free.” Shortly thereafter, the officers took appellant into custody.
DISCUSSION
Section 654
As indicated above, appellant contends the spousal battery (count 3) and the criminal threat (count 5) were “incidental to the kidnapping and/or the attempted murder,” and therefore the court erred in failing to stay execution of sentence on the count 3 and count 5 offenses pursuant to section 654.
Section 654, subdivision (a) provides, in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Thus, under the plain language of the statute multiple punishment may not be imposed for a single “act or omission.” (Ibid.) But in addition, section 654 also prohibits multiple punishment for multiple acts which comprise an “indivisible course of conduct.” (People v. Hester (2000) 22 Cal.4th 290, 294.)
A course of conduct is “indivisible” if the defendant acts with “a single intent and objective.” (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) “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.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) “The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) The court’s findings may be either expressed or implied from the court’s ruling. (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585.)
“[T]he fact certain acts are proximate in time is not determinative in finding an indivisible course of conduct. Multiple criminal objectives may divide those acts occurring closely together in time.” (People v. Bradley (1993) 15 Cal.App.4th 1144, 1157, disapproved on another point in People v. Rayford (1994) 9 Cal.4th 1, 7.) Thus, as our Supreme Court noted in People v. Latimer (1993) 5 Cal.4th 1203, “Some [decisions] have narrowly interpreted the length of time the defendant had a specific objective, and thereby found similar consecutive objectives permitting multiple punishment.” (Id. at pp. 1211-1212.) The court in Latimer cited People v. Trotter (1992) 7 Cal.App.4th 363 as an example. (People v. Latimer, supra, at p. 1212.)
In Trotter, the defendant was punished separately for two of three gunshots fired at a pursuing officer. On appeal, the court rejected the defendant’s claim of a single objective-“to avoid apprehension”-concluding that it was proper to punish him separately for the first two shots, which were fired “within one minute” of each other. (People v. Trotter, supra, 7 Cal.App.4th at p. 366.) The court observed: “Defendant’s conduct became more egregious with each successive shot. Each shot posed a separate and distinct risk to [the officer] and nearby freeway drivers. To find section 654 applicable to these facts would violate the very purpose for the statute’s existence” (id. at p. 368), which is “‘to insure that a defendant’s punishment will be commensurate with his culpability’” (id. at p. 367).
“Furthermore, [Trotter] was not a case where only one volitional act gave rise to multiple offenses. Each shot required a separate trigger pull. All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible. None was spontaneous or uncontrollable. ‘[D]efendant should … not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his … assaultive behavior.’” (People v. Trotter, supra, 7 Cal.App.4th at p. 368, citing People v. Harrison, supra, 48 Cal.3d at p. 338.) Finally, the court also observed that “even under the long recognized ‘intent and objective’ test, each shot evinced a separate intent to do violence ….” (People v. Trotter, supra, at p. 368.)
We first consider appellant’s claim that the spousal battery was incident to the attempted murder. Appellant’s course of conduct is readily divisible into two parts. The first phase occurred when appellant dragged the victim from the side of the house to the alley, forced her to the ground and choked her. The second phase began when appellant began dragging the victim away from the alley and into the park.
As the parties agree, the spousal battery could have occurred at multiple points, the earliest being when appellant choked the victim in the alley behind the house. Although this offense was temporally close to the attempted murder, the two offenses nevertheless “were separated by periods of time during which reflection was possible.” (People v. Trotter, supra, 7 Cal.App.4th at p. 368.) Appellant had halted his progress toward the spot where he eventually attempted to murder the victim. He had the “‘opportunity to walk away,’” but instead he “‘resumed his … assaultive behavior.’” (Ibid.) In our view, the attempted murder and the spousal battery appellant committed behind the house were separate volitional acts. Moreover, appellant’s conduct became more egregious when he resumed his assaultive conduct after stopping just long enough to choke the victim into unconsciousness. On this record, substantial evidence supports the court’s implied finding that appellant acted with separate intents and objectives in the two phases of his course of conduct.
We also reject appellant’s contention that section 654 prohibited punishment on the spousal abuse count because that offense was incidental to the kidnapping. Appellant was not punished for the kidnapping; as indicated above, the court stayed execution of sentence on that offense pursuant to section 654. Therefore, imposition of sentence on the spousal battery count could not constitute multiple punishment for the same act vis-à-vis the kidnapping.
The imposition of sentence on both the count 5 criminal threat and the attempted murder stands on a different footing. Appellant committed the count 5 offense when, as he dragged the victim into the park, he told her not to scream or try to run away, or else he would stab her. The record demonstrates appellant made his threat in order to enable him to continue with the kidnapping and, eventually, murder her. There is no substantial evidence that appellant acted with any other objective in making the threat. Therefore, imposition of sentence on both the criminal threat and the attempted murder violated section 654.
The People argue that remand is necessary. They point out that although the court imposed, and failed to stay execution of, sentence on count 5, prior to imposing sentence the court stated, “the threat to kill is … 654 to the … attempted murder.” The People argue that because “the court’s … statements were contradictory,” “[i]t is not clear whether the court misspoke when it said the criminal threat related to count 5 was ‘654,’ or whether it mistakenly imposed the consecutive term for the sentence when it meant to stay the sentence under section 654.” However, because, as demonstrated above, there was no substantial evidence that appellant acted with separate intents and objectives in making the criminal threat and committing the attempted murder, remand would serve no purpose. (Cf. People v. Blessing (1979) 94 Cal.App.3d 835, 839 [no remand, despite sentencing error, where remand would be “idle gesture[]”].)
Where multiple punishments have been improperly imposed, the proper procedure is for the reviewing court to modify the sentence to stay the sentence imposed for the lesser term. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.) Accordingly, we will modify appellant’s sentence by staying the eight-month term imposed on count 5.
Correction of Minute Order and Abstract of Judgment
The sentencing minute order and the abstract of judgment indicate a sentence of seven years to life in prison on the attempted murder charged in count 1. Appellant contends the correct sentence for that offense is life in prison with the possibility of parole, and that this court should order that the abstract and minute order be corrected. The People concede the point. We agree.
At sentencing, the court initially stated the sentence on count 1 was “the statutory term of seven years to life.” Moments later, the court corrected itself: “Actually, this term, I guess the parole term is life. He will get a life sentence. Your parole term is life.”
As the parties agree, although a defendant sentenced to life in prison may be eligible for parole after serving seven years in prison (§ 3046), the prescribed term for attempted “willful, deliberate, and premeditated murder, as defined in Section 189, … [is] imprisonment in the state prison for life with the possibility of parole” (§ 664, subd. (a)).
Thus, although there was some confusion, the court imposed the correct term on count 1-life in prison with the possibility of parole-but the abstract of judgment and minute order incorrectly indicate a term of seven years to life. We will order that the abstract and minute order be corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [“Courts may correct clerical errors at any time, and appellate courts … that have properly assumed jurisdiction of cases have ordered corrections of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts”].) We will further direct that a certified copy of the amended abstract be forwarded to the Department of Corrections and Rehabilitation.
DISPOSITION
The judgment is modified as follows: execution of the eight-month sentence imposed on count 5 is stayed pending service of sentence on the remaining counts, the stay then to become permanent. The trial court is directed to (1) prepare an amended abstract of judgment reflecting this modification and the correct sentence imposed on count 1, viz., life in prison with the possibility of parole; (2) prepare an amended sentencing minute order reflecting the correct sentence imposed on count 1; and (3) forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.