Opinion
D082757
01-31-2024
THE PEOPLE, Plaintiff and Respondent, v. ERIC WERNER VON JOHL, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Evan Stele, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, Super. Ct. No. INF2201335, Magdalena Cohen, Judge.
Jeanine G. Strong, under appointment by the Court of Appeal for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Evan Stele, Deputy Attorneys General, for Plaintiff and Respondent.
DO, J.
INTRODUCTION
In this appeal, Eric Von Johl raises three claims of sentencing error following his convictions by a jury of four crimes arising from his attack on a domestic partner. He asserts: (1) Penal Code section 654 precluded multiple punishment because all four offenses were part of one indivisible course of conduct; (2) Because the court found section 654 applied to count 1, it was required to stay execution of sentence on that count rather than impose a concurrent term; and (3) The court made a true finding on "a prison prior enhancement" that is legally invalid pursuant to section 667.5 and the minute order should be corrected to reflect it was legally invalid. We agree with his second contention and shall modify the judgment to stay the sentence on count 1. We affirm the judgment in all other respects.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Von Johl of inflicting corporal injury resulting in a traumatic condition upon Jane Doe, a domestic partner (§ 273.5, subd. (a); count 1); false imprisonment (§ 236; count 2); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 3); and first degree robbery (§§ 211, 212.5; count 4). The evidence at trial established the following:
As all too common in domestic violence cases, Jane changed her story and testified she was the aggressor and consented to certain acts of physical harm, including strangulation. The prosecution then admitted evidence of Jane's previous statements through body worn camera footage and a transcript of her preliminary hearing testimony. Further, because Von Johl does not raise a sufficiency of the evidence claim, we summarize only the evidence necessary to consider his claims of sentencing errors.
In April 2022, Jane had been dating Von Johl for eight years. They had a small child and lived together in a travel trailer on a dirt road in a desolate area of Cathedral City.
On April 16, Von Johl left Jane at their home after they had a disagreement. Jane got drunk and then went to sleep. Five or six hours later, she woke up to Von Johl screaming and hitting her in the head. He was not drunk but "crazy," calling her a "whore" and accusing her of sleeping with her sister's boyfriend and "everybody." He slapped her approximately six times in the head.
Jane tried to get outside to her car. She got to the kitchen and Von Johl "forced" her back inside the bedroom. He accused her of wanting to leave to "go be a whore." He threw her onto the bed, "rolled [her] over" and "slammed" her head into the wall.
Von Johl started "choking" Jane "hard." Though Jane found "it hard to talk," she pleaded for him to leave her alone and told him she wanted to leave. She believes Von Johl strangled her for about 30 seconds. She was afraid Von Johl was "killing" her and thought she was going to die. He would "stop and start again, stop and start again," about four or five times. She did not urinate or defecate herself this time, though that has happened when he choked her another time.
Von Johl then told her he would "get off" her if she gave him her stash of methamphetamine. She complied and he stopped choking her. They "planned on smoking" so they went outside to smoke. Jane went to her car, asked for her keys because she wanted to leave, and demanded Von Johl return "everything [he] stole" from her, including her keys and drugs. Von Johl accused her again of wanting to leave "to be a whore," kicked her in the leg, and "took off" in his truck.
Jane called 911, reporting she had "bruises all over" her and that her "head hurt[ ]" as a result of Von Johl's attack. When officers arrived, they photographed her injuries and took her to a nearby gas station to receive medical treatment. She asked for an emergency protective order because she was "scared."
There had been four or five previous incidents of domestic abuse during their eight-year relationship. In all of them, he choked her. In one incident, while they were in a car "[d]eep in the desert," Von Johl put her in a chokehold, hit her in the eye with his elbow, and slapped her in the head "over 100 times . . . again and again," calling her a "whore." The injuries she received from his strikes made her look "like [she] fell in poison oak"; she looked like she "was deformed." After Von Johl fell asleep, she took his cellphone and photographed her injuries and sent the pictures to her mother.
DISCUSSION
I.
Section 654In sentencing Von Johl, the trial court imposed punishment on counts 1, 2, 3, and 4 for a total prison commitment of five years and eight months. The court imposed the middle term of four years for the robbery in count 4; a consecutive one year (one-third of the middle term) for the assault in count 3; and a consecutive eight months (one-third of the middle term) for the false imprisonment in count 2. The court found the corporal injury to a domestic partner in count 1 to be "part of the same course of conduct" as the assault in count 3 and imposed a concurrent term of the three years for count 1.
Von Johl contends section 654 precluded multiple punishment on all the offenses because they were part of one continuing, indivisible course of conduct and committed with the same objective-"to force Jane Doe to give up her methamphetamine." We reject this contention but agree with his second claim that section 654 required the court to stay execution of sentence on count 1.
A. Substantial Evidence Supports the Trial Court's Implied Finding That Section 654 Did Not Apply to the Crimes in Counts 2, 3, and 4
Section 654, subdivision (a), provides that "[a]n act . . . that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act . . . be punished under more than one provision." The purpose of section 654 is to ensure a defendant is punished" 'commensurate with his [or her] culpability.'" (People v. Harrison (1989) 48 Cal.3d 321, 335.) The defendant's intent and objective, not the temporal proximity of his offenses, determines whether multiple punishment is permissible. (Ibid.) When section 654 prohibits multiple punishments, the trial court must stay execution of sentence on the convictions that implicate multiple punishments. (People v. Correa (2012) 54 Cal.4th 331, 337 (Correa).) We apply a two-step inquiry to determine whether a defendant may be subjected to multiple punishment under section 654. (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).)
"We first consider if the different crimes were completed by a 'single physical act.' . . . If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act-i.e., a course of conduct-do we then consider whether that course of conduct reflects a single' "intent and objective"' or multiple intents and objectives.... At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act.... When those facts are undisputed . . . the application of section 654 raises a question of law we review de novo." (Corpening, supra, 2 Cal.5th at pp. 311-312, citations omitted.) But" [a] trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence." (People v. Brent (2012) 53 Cal.4th 599, 682 (Brent).) And where, as here, the trial court does not make an explicit ruling, "we infer that the court made the finding appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it." (People v. Mejia (2017) 9 Cal.App.5th 1036, 1045 (Mejia).)
Both the prosecution in its sentencing brief and the probation department in its report asserted that section 654 did not apply to any of the counts. The probation department's view, in particular, was that all the offenses "arise from separate intents and objectives." Von Johl made no argument about the application of section 654. The trial court did not discuss application of section 654 when it imposed punishment on the crimes of false imprisonment (count 2), the assault by means of force likely to produce great bodily injury (count 3), and the first degree robbery (count 4). We thus infer the court impliedly found that section 654 did not apply to these crimes (Mejia, supra, 9 Cal.App.5th at p. 1045), and we uphold that finding if supported by substantial evidence (Brent, supra, 53 Cal.4th at p. 682).
Nevertheless, the section 654 issue is not forfeited for appellate review. (People v. Hester (2000) 22 Cal.4th 290, 295 [waiver doctrine does not apply to questions involving application of § 654; a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under § 654].)
As the parties agree, this case involves a course of conduct, rather than a single physical act. Von Johl hit Jane in the head six times; forced her back into the bedroom, restrained her when she tried to leave, and slammed her head into a wall; choked her four to five times; used force or fear to steal her methamphetamine; and once outside the trailer, kicked her in the leg. We thus "consider whether that course of conduct reflects a single' "intent and objective"' or multiple intents and objectives." (Corpening, supra, 2 Cal.5th at p. 311.) However, even where a course of conduct is divisible in time and directed to one objective, it still "may give rise to multiple convictions and multiple punishment 'where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.'" (People v. Lopez (2011) 198 Cal.App.4th 698, 717-718, italics added (Lopez).)
We disagree with Von Johl that the evidence established he committed the crimes of assault, false imprisonment and robbery with the single objective of forcing Jane to give up her methamphetamine.
At the start of the attack, Von Johl hit Jane in the head six times as he called her a "whore" and accused her of having slept with other men. She later complained of injury to her head as a result. This was the crime of corporal injury to a domestic partner (count 1), and it is clear Von Johl physically attacked Jane because he believed she had been unfaithful and wanted to hurt her out of jealousy.
Jane then escaped Von Johl's initial attack and got out of the bedroom. But when she got to the kitchen, he "forced" her back inside the bedroom, threw her onto the bed and "slammed" her head into the wall. He accused her of wanting to leave to "go be a whore." This was the crime of false imprisonment (count 2). (See People v. Williams (2017) 7 Cal.App.5th 644, 672 ["[f]alse imprisonment occurs when the victim is compelled to remain where [s]he does not wish to remain, or to go where [s]he does not wish to go," (internal quotation marks omitted)].) The evidence reveals Von Johl kept Jane from leaving to prevent her from cheating on him again.
Jane got up to leave the bedroom again but Von Johl placed her in a chokehold, pulled her back, and started choking her from behind. He again accused her of wanting to leave to be unfaithful. She pleaded for him to let her go. Based on the force used and the duration of the strangulation, Jane believed Von Johl would kill her and she was going to die. The act of strangulation is a distinct physical act from the previous hits to her head and constituted an assault with force likely to cause great bodily injury (count 3). From Jane's statements, a reasonable factfinder can properly infer that Von Johl's objective in choking Jane was to cause her great bodily injury, or death, out of jealous anger, not any desire to steal her methamphetamine.
After stopping and starting the strangulation, four to five times, Von Johl then told her he would stop if she gave up her methamphetamine. Jane complied and gave him the methamphetamine. This constituted the crime of robbery (count 4). A reasonable factfinder could infer from the evidence that Von Johl changed his objective from wanting to cause Jane great bodily injury to now wanting to steal her methamphetamine.
At the heart of this case was an eight-year relationship marred by severe domestic violence in which Von Johl had, on other occasions, beat and strangled Jane, not to steal but to inflict physical violence on his domestic partner. We disagree the evidence established Von Johl's entire course of conduct on that April night was motivated by the single objective of stealing drugs from Jane.
We conclude substantial evidence supports the trial court's implied finding that Von Johl's course of conduct revealed "multiple intents and objectives" (Corpening, supra, 2 Cal.5th at p. 311) and section 654 did not preclude multiple punishments on counts 2, 3 and 4. However, even if Von Johl's course of conduct was directed to one objective, we would conclude substantial evidence supports the trial court's implied finding that Von Johl's course of conduct was divisible in time and his offenses were sufficiently separated in time such that he had the opportunity to reflect and renew his intent before committing the next crime. (Lopez, supra, 198 Cal.App.4th at pp. 717-718.)
B. Execution of Sentence on Count 1 Shall Be Stayed
As we have mentioned, the trial court found the offense of corporal injury to a domestic partner in count 1 to be "part of the same course of conduct" as the assault in count 3. As a result, it imposed a concurrent term of the three years for count 1. Von Johl contends section 654 required the court to stay execution of sentence on count 1, not impose a concurrent sentence. We agree. When section 654 prohibits multiple punishments, the trial court must stay execution of sentence on the convictions that implicate multiple punishments. (Correa, supra, 54 Cal.4th at p. 337.) Imposing a concurrent sentence is an improper method of implementing section 654 "because a concurrent sentence is still punishment." (People v. Alford (2010) 180 Cal.App.4th 1463, 1468; accord People v. Duff (2010) 50 Cal.4th 787, 796.)
The People contend, however, that we should presume the trial court in imposing a concurrent sentence impliedly found section 654 was inapplicable as to counts 1 and 3. The record does not support this presumption. Before imposing sentence on counts 1 and 3, the court asked the prosecutor to "clarify" its position regarding "654" as to these counts. The prosecutor responded with its view of the evidence as to counts 1 and 3: "Yes, the 245(a)(4) [count 3], Your Honor, is for the strangulation, the choke hold that occurred while in the -- when [JANE DOE] was trying to leave, where he came up from behind her and put her in the choke hold. And the 273.5 [count 1] is for the other injuries that occurred that day. I believe there was the punches to the face that occurred. And then when he kicked her in the shin that caused injury to her leg as well." The court then ruled: "I am going to find that [c]ounts 1 and 3 are part of the same course of conduct.
So I'm going to impose the middle term of three years on [c]ount 1, concurrent. Find that it is part of the same course of conduct." (Italics added.)
The trial court's express reference to section 654 and its finding that counts 1 and 3 are part of the same course of conduct establishes its intention to apply section 654 as to both counts. Although we conclude the trial court erred, remand is not necessary because we shall modify the judgment to stay execution of sentence on count 1.
II.
The Trial Court Did Not Make a Finding on a Prison Prior Enhancement
Von Johl asserts the trial court made a true finding on a "prison prior enhancement" that is now invalid under section 667.5, as amended by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136). He asks that we remand with directions to the trial court to correct its minute order to reflect that the "enhancement" was legally invalid. We decline. The minute order does not require correction because the trial court did not make any finding of a prison prior enhancement.
"Before January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a prior prison term and had not remained free of custody for at least five years." (People v. Carter (2023) 97 Cal.App.5th 960, 966.) Effective January 1, 2020, Senate Bill 136 amended section 667.5 by limiting the enhancement to only prior prison terms served for sexually violent offenses. Enhancements based on prior prison terms served for other offenses became legally invalid. (Carter, at p. 966.)
In a first amended information, the People alleged as an aggravating factor that Von Johl had served a prior term in prison, within the meaning of California Rules of Court, rule 4.421(b)(3). In a bifurcated bench trial before sentencing, the court found that aggravating factor to be true. The minute order accurately reflects the court's true finding on the aggravating factor pursuant to rule 4.421(b)(3). Senate Bill 136 has no effect on allegations of circumstances in aggravation, including where "the defendant has served a prior term in prison or county jail under section 1170[, subdivision ](h)" pursuant to rule 4.421(b)(3).
DISPOSITION
Von Johl's sentence on count 1 (§ 273.5, subd. (a)) is stayed. The judgment as modified is affirmed. The superior court clerk is directed to prepare an amended sentencing minute order and an amended abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.)
WE CONCUR: McCONNELL, P. J., BUCHANAN, J.