Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF104245A
NICHOLSON, J.
A jury convicted defendant Gonzalo Garibay of kidnapping his niece and assaulting her and her boyfriend. (Pen. Code, §§ 207, subd. (a); 240.) The trial court sentenced defendant to five years in state prison. The sentence was composed of the middle term of five years on the felony kidnapping count, plus concurrent terms of 180 days on each of the misdemeanor assault counts.
Subsequent undesignated references to sections are to the Penal Code.
Defendant appeals, claiming: (1) statements by the victim and the prosecutor rendered his trial fundamentally unfair; (2) insufficient evidence supports the assault convictions; and (3) the sentences on the assault counts should be stayed under section 654. We disagree and affirm the judgment.
FACTS
In late April 2005, the victim, 18-year-old Eva Garibay, had run away from home and was staying with her boyfriend, Christian Zendjas, and his parents. On April 29, 2005, Eva and Zendjas were returning from dinner along with their friends Elizabeth Meza, Juan Rico, and Manuel. They were riding in Zendjas’s Chevy Suburban. Zendjas was driving, Eva was seated in the front passenger seat, and the friends were seated in the back.
Suddenly, defendant’s Ford Expedition cut them off and blocked the street. At the same time, a Chevy Silverado pickup pulled up behind them to box them in. Defendant cut off Zendjas from the left. Zendjas had to swerve and make several maneuvers to avoid being hit. If he had not hit his brakes hard, he would have hit the Expedition.
Eva panicked when she saw the Expedition, screaming, “It’s my dad. It’s my dad.” She told Zendjas to lock the doors and keep driving, but Zendjas could not drive any further.
Defendant and Eva’s father, Jaime Garibay, got out of the Expedition. Jaime got out from the front passenger seat, and defendant got out from the driver’s seat. They walked to Zendjas’s car. Eva was scared and kept locking the car’s doors. Jaime approached her side of the car, and defendant approached Zendjas’s side. Jaime knocked on the window and told Eva to get out of the car. Someone inside the car unlocked the doors.
Jaime pulled Eva out of the car by her arm, grabbed her around her waist, and tried to take her to the Expedition. Eva started kicking and tried to pull away. She was scared and told her father to let her go, but Jaime said if she did not go with him, he would cut off her friends’ arms. Jaime got her into the Expedition’s passenger seat and sat next to her. Defendant got into the Expedition’s driver’s seat on the other side of Eva, and he drove them away.
While this was going on, two men got out of the Silverado. They were dressed in blue. One had a crowbar, and the other had a two-by-four. The man with the two-by-four opened one of the Suburban’s back doors and pulled Rico out of the car. Another man pulled Manuel out of the car, and Meza got out on her own. The man with the two-by-four told Rico, “[D]on’t worry about this, this is just family business.”
A male came up to Zendjas’s side of the car, opened the door, and tried to yank Zendjas out of the car. Zendjas tried to push the man out of the car, but the man hit Zendjas in the face, cutting Zendjas’s lip. Zendjas testified defendant was not the person who hit him.
After defendant got back into the Expedition, he drove Eva and her father to his house, a trip of about 15 or 20 minutes. They stayed there for less than an hour, and then Eva’s father took Eva to Southern California.
Meanwhile, after the Expedition had left, everyone else got back into their cars. Zendjas drove off, but about 45 seconds later, he received a call from Eva’s father. He told Zendjas his family would be in danger if he called the police. The Silverado also followed Zendjas for a while before turning away. When Zendjas got home, he told his father what had happened, and his father called the police.
The prosecutor charged defendant with kidnapping (§ 207, subd. (a)), assault with a deadly weapon on Eva (§ 245, subd. (a)(1)), and assault with a deadly weapon on Zendjas (§ 245, subd. (a)(1)). The jury found defendant guilty of kidnapping and the lesser included misdemeanor offenses of assault (§ 240).
DISCUSSION
I
Effect of Statements by Eva and the Prosecutor
Defendant claims two statements by Eva and one statement by the prosecutor at trial were so prejudicial they individually and cumulatively rendered his trial fundamentally unfair in violation of his due process rights. We disagree.
A. Eva’s statement regarding her father, Jaime Garibay
First, defendant challenges Eva’s explanation as to why she was staying with Zendjas. When the prosecutor asked Eva if she was staying with Zendjas because of “abuse allegations with your father, ” Eva replied, “Yes.” The trial court overruled defendant’s objection.
This statement did not unduly prejudice defendant. The trial court had previously ruled on a motion in limine pursuant to Evidence Code section 352 that the statement’s probative value outweighed its prejudicial effect. The court found the statement was relevant as it explained Eva’s “state of mind, her fear of her father, why she would not want to go with him, which certainly would be relevant to [the] kidnapping charge.”
The court also stated the phrase “‘abuse allegations’” was a “very benign statement. It’s not nearly as inflammatory as stating that he had been sexually molesting her.” It was sufficiently sanitized for the jury to learn why Eva did not want to go with Jaime as well as to protect defendant from prejudice if the true nature of the abuse allegations were exposed to be sexual molestation allegations.
The trial court’s decision to admit the question and answer was not an abuse of discretion. Under Evidence Code section 352, a trial court in its discretion may weigh testimony to determine if its probative value is outweighed by its prejudicial effect. We may not overturn a trial court’s exercise of discretion under Evidence Code section 352 “in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
Here, the court weighed the evidence’s prejudicial effect with its probative value, and it reached a reasoned decision in support of admitting the sanitized evidence. We agree with its conclusion. The evidence was relevant to explain Eva’s state of mind and her fear of her father, as well as to suggest a motive for her father’s and defendant’s actions. The court did not abuse its discretion in admitting Eva’s statement of abuse.
B. Eva’s statement regarding defendant
Second, defendant challenges Eva’s explanation of her relationship with defendant while growing up. When asked how she recognized the Expedition as defendant’s, Eva stated she had seen it at his house and had seen him drive it. Eva stated she saw defendant, her uncle, “[a]lmost every day.” Growing up, she remembered him “being like locked up a lot, so we wouldn’t see him --.” Defendant objected to Eva’s statement, and the trial court sustained the objection, struck the statement from the record, and instructed the jury to disregard it.
Eva’s statement did not create undue prejudice because the trial court ordered the statement stricken from the record and instructed the jury not to consider it. “It is axiomatic that the prejudicial effect of errors may be overcome by subsequent corrective action such as the admonishment of the jury and that in such event the error may be deemed cured.” (People v. Ryan (1981) 116 Cal.App.3d 168, 184.) That is what occurred here.
C. Prosecutor’s statement
Third, defendant challenges a question the prosecutor posed to the court concerning defendant’s behavior during Eva’s testimony. While Eva was on cross-examination, the prosecutor asked the court, “Could you please admonish the defendant to stop smirking and laughing at the testimony of this witness? He’s done it repeatedly --.” Defense counsel objected, stating defendant was allowed to react. The court agreed with defense counsel: “As long as [defendant] doesn’t say anything, he can do anything he wants.”
The prosecutor’s request to the court did not create undue prejudice. Defendant claims the prosecutor’s remark was similar to one held to be harmless error in People v. Garcia (1984) 160 Cal.App.3d 82, where the prosecutor in closing argument questioned how a defendant and a member of the audience could “‘snicker and jeer and laugh about’” the brutal nature of the defendant’s crime while the victim was testifying. The Court of Appeal determined the prosecutor’s argument wrongly “invited the jury to speculate that defendant’s courtroom conduct shows him to be the type of person willing to participate in unlawful activity; and therefore he is likely to have committed the crimes in question.” (Id. at p. 93.)
The prosecutor’s objection in this case did nothing of the sort. As the trial court stated when considering this issue on defendant’s motion for new trial, “[t]he D.A. is entitled to object to conduct by a defendant that can have an effect on a witness. Now, the jury is instructed not to make a decision based on anything that happens in court such as that by the defendant. So I don’t – I don’t think that was significant. And the D.A. did not comment on it during the argument....”
Indeed, in this case, the prosecutor did not mention this incident again. However, defense counsel raised it in his closing argument. He tried to explain away defendant’s behavior and asked the jurors if any of them saw defendant smirking. This argument brought the incident to the juror’s minds much stronger than the prosecution’s objection to the court. The objection did not create undue prejudice.
D. Cumulative error
Even if we were to find error on account of any or all of these statements, we would not conclude that absent the errors, defendant would have received a more favorable result. (People v. Watson (1956) 46 Cal.2d 818, 835-837.) Nor would we conclude the alleged errors violated the constitutional standard of review. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].) The evidence against defendant was overwhelming. There is no doubt that he drove his Expedition, blocked off Zendjas’s car, and participated in Eva’s kidnapping. The jury would have so concluded even if the alleged errors had not occurred. Eva’s and the prosecutor’s statements did not result in prejudicial error.
II
Sufficiency of the Evidence on the Assault Convictions
Defendant claims there is insufficient evidence supporting his two misdemeanor assault convictions. He asserts there is no evidence he attempted to inflict violent injury on Eva and Zendjas through the use of his Expedition. All he allegedly intended to do was cause Zendjas to stop his Suburban, an act he claims does not constitute assault. We disagree.
We are not concerned with defendant’s specific intent. Assault is a general intent crime, “‘established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery.’ [Citations.]” (People v. Chance (2008) 44 Cal.4th 1164, 1169.)
What matters is whether there is substantial evidence of an act the law defines as an assault. “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) “‘“An assault is an act done toward the commission of a battery; it must precede the battery, but it does so immediately. The next movement would, at least to all appearance, complete the battery....”’ [Citations.]” (People v. Colantuono (1994) 7 Cal.4th 206, 216.)
This record contains substantial evidence supporting defendant’s assault convictions. He drove his Expedition at Zendjas’s Suburban in such a way that he forced Zendjas to take evasive action in order to avoid being hit. This evidence established that Zendjas’s Suburban would have been hit and he and Eva would have likely been injured had he not taken immediate evasive action. In other words, but for Zendjas’s evasive action, defendant’s next movement, after aiming his car at Zendjas’s Suburban, would have completed a battery, or worse. This is sufficient evidence of an assault.
III
Section 654
Defendant asserts the trial court erred by not staying his concurrent sentences on the misdemeanor assault counts. He claims the assaults and the kidnapping constituted one continuous, indivisible course of conduct, and thus section 654 should preclude execution of sentences on the assault counts. We disagree.
“Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
“On the other hand, when an accused has embarked upon a course of conduct wherein he may be deemed to have entertained multiple criminal objectives none of which are merely incidental to any other, the meaning of ‘act or omission’ has been construed in a manner consistent with that multiple objective and what may appear on the surface to be a single act may embody separately punishable violations. We must, accordingly, give heed to an accused’s objectives when they can be ascertained.” (People v. Beamon (1973) 8 Cal.3d 625, 638.)
We review the trial court’s implied determination of defendant’s intent and objectives in the light most favorable to the judgment, and we uphold it if it is supported by substantial evidence. (People v. Andra (2007) 156 Cal.App.4th 638, 640.)
The trial court’s execution of sentences on the assault convictions is supported by substantial evidence. Although the assaults were preliminary to the kidnapping, they were not merely incidental thereto. They were separate crimes based on separate objectives and involving separate victims. The evidence establishes defendant harbored two separate objectives: one, to assault Zendjas and Eva in Zendjas’s Suburban, and, two, to kidnap Eva. These separate objectives justified the trial court’s execution of sentence on the misdemeanor assault convictions. Sentencing did not violate section 654.
IV
Finally, the recent amendments to section 4019 do not operate to modify defendant’s entitlement to credit, as he was required to register as a sex offender, committed for a serious or violent felony, and/or had a prior conviction(s) for a serious or violent felony. (§ 4019, subds. (b)(1), (2) & (c)(1), (2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P. J., RAYE, J.