Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08CR13981
SCOTLAND, P. J.
A jury found defendant Julio Angel Torres guilty of interfering with an executive officer (count 2) and misdemeanor battery on a custodial officer (count 1). The court sentenced him to a term of two years on count 2 and a concurrent term of six months on count 1, suspended execution of the sentence, and placed defendant on probation.
A person violates Penal Code section 69 if he or she “attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty.”
A person violates Penal Code section 243, subdivision (b) if he or she commits battery against a peace officer “engaged in the performance of his or her duties,... and the person committing the offense knows or reasonably should know that the victim is a peace officer... engaged in the performance of his or her duties....”
Defendant appeals, claiming the sentence on count 1 should have been stayed pursuant to Penal Code section 654. We agree. Thus, we shall so modify the judgment and affirm it as modified.
FACTUAL AND PROCEDURAL HISTORY
When defendant, a ward of the Preston Youth Correctional Facility, refused to leave the facility recreational area, he had to be handcuffed and escorted to his room by youth correctional officers Hayden, Henderson, Delaney, and Rhoades.
Upon reaching his room, defendant became upset and verbally abusive toward staff. After calming him down, staff asked defendant to place his hands through the “cuffing port” in the door so they could remove the handcuffs. Defendant initially complied, and Hayden removed the left hand cuff without incident. However, as soon as the right restraint was removed, defendant reached back and grabbed Hayden’s middle finger, pulling and twisting it for several seconds, causing Hayden pain. All four officers told defendant to let go. Henderson grabbed defendant’s right forearm and pulled it through the port. When Rhoades threatened to spray defendant with mace, defendant released the hold and Hayden was able to pull his finger free.
At trial, defendant denied ever grabbing Hayden’s finger. He claimed he kept his hand in the port so staff would hear his request to speak to the lieutenant about his missing property and the fact that his time in the recreation area had been cut short.
DISCUSSION
Defendant contends both of the crimes he committed were part of an indivisible course of conduct with a single objective, to “resist and deter Hayden in the performance of his duties”; thus, Penal Code section 654 precluded him from being punished for both. (Further section references are to the Penal Code.)
Section 654 states in 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.” (§ 654, subd. (a).)
The People concede the two offenses arose from an indivisible course of conduct. However, relying on People v. Martin (2005) 133 Cal.App.4th 776, 782 (hereafter Martin), the People argue that the multiple victim exception to section 654 applies here, where defendant committed the two crimes against different victims, i.e., he resisted all four officers and battered Hayden.
As we will explain, the multiple victim exception does not apply to the circumstances of this case.
In Martin, officers responded to a domestic violence call. After speaking with the victim, they decided to arrest Martin. (Martin, supra, 133 Cal.App.4th at pp. 779-780.) Handcuffed and escorted to a patrol car, Martin was compliant initially but then resisted, threatening that he would have to be shot before he would go to jail. (Id. at p. 780.) Martin jerked his body backwards, injuring one of the officers. Other officers eventually subdued Martin. (Ibid.) He was convicted of spousal battery, resisting arrest, and battery on a peace officer. (Ibid.) He appealed, claiming section 654 precluded him from being punished for the resisting arrest charge and the battery charge because both were incident to his sole objective--to escape. (Ibid.) The Court of Appeal disagreed. Applying the multiple victim exception to section 654, it noted that Martin “committed acts of violence against more than one victim; he resisted arrest by four different officers and battered one of them.” (Id. at pp. 782-783.)
At first blush, Martin would appear to be indistinguishable from this case. However, there is one very important difference. Martin says nothing about the manner in which Martin was charged, suggesting the charges of resisting arrest and battery on a peace officer did not specify any particular victim. Here, on the other hand, nearly every reference made regarding the charges against defendant specified Hayden as the only victim. The complaint, deemed to be the information, charged defendant in count 1 with battery on a peace officer, specifically, “upon the person of YCO Matthew Hayden.” Count 2 charged defendant with resisting an executive officer, namely “YCO Matthew Hayden.” The court told the jurors “the offenses are alleged to have been committed against a youth correctional officer by the name of Matthew Hayden.” While instructing the jurors at the commencement of trial, the court said that, to prove count 1, “the People must prove that, number one, Matthew Hayden was a peace officer performing the duties of a correctional officer; number two, the defendant willfully and unlawfully touched Matthew Hayden in a harmful or offensive manner; and number three, when the defendant acted, he knew or reasonably should have known that Matthew Hayden was a peace officer....” As to count 2, the court instructed “the People must prove that, number one, the defendant unlawfully used force or violence to resist an executive officer; number two, when the defendant acted, the officer was performing his lawful duty; and number three, when the defendant acted, he knew the executive officer was performing his duty. [¶]... [¶] The People have the burden of proving beyond a reasonable doubt that Matthew Hayden was lawfully performing his duties as a custodial officer....”
The prosecution also focused on Hayden alone. During opening argument, the prosecutor stated: “The victim in this case is Youth Correctional Officer Matthew Hayden.... [¶]... Suffice it to say that the basic requirement is that the defendant.... unlawfully touched Mr. Hayden, Correctional Officer Hayden, in a harmful, undesired manner, while Officer Hayden was performing his duty.” Similarly, during closing argument, the prosecutor argued that, with respect to the charge of simple battery, “[t]he alleged victim in this case is Matthew Hayden.” As to the charge of resisting an executive officer, the prosecutor argued that there was evidence defendant “touched at least one of the officers, Officer Hayden,” and further argued “Officer Hayden was performing his lawful duty.”
“[O]ne accused of a crime must be ‘informed of the nature and cause of the accusation.’ (U.S. Const., Amend. VI.) Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. [Citation.] [¶] Thus, the right to defend has two related components, namely, the right to notice of the charges, and the right to present a defense to those charges.” (People v. Jones (1990) 51 Cal.3d 294, 317, italics omitted; People v. Thomas (1987) 43 Cal.3d 818, 823.)
Taking into account the charging document, testimony at the preliminary hearing, the court’s comments and instructions, and the prosecutor’s opening and closing arguments, defendant was put on notice that he was charged with, and would need to defend against, battery on a custodial officer and interference with an executive officer, both related to Hayden as the only victim.
“‘Notice of the particular circumstances of the offense is given not by detailed pleading but by the transcript of the evidence before the committing magistrate....’ [Citations.]” (People v. Thomas, supra, 43 Cal.3d at p. 829.) Hayden was the sole witness for the prosecution at the preliminary hearing. Based only on Hayden’s testimony, the court found there was probable cause to hold defendant over for the charge of battery with injury on a peace officer, and for resisting an executive officer; “i.e., Officer Hayden.” Given that, the only charges of which defendant was advised were charges against him relating to Hayden as the sole victim.
Consequently, the multiple victim exception to section 654 does not apply. The sentence imposed on count 1 must be stayed.
DISPOSITION
The judgment is modified by staying the sentence on count 1 pursuant to section 654. As so modified, the judgment is affirmed. The trial court is directed to so amend the abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SIMS, J. BUTZ, J.