Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF135310, Sharon J. Waters, Judge.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Arlene A. Sevidal, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ramirez, P.J.
Defendant William Wesley Bibb was convicted by a jury of residential burglary (Pen. Code, §§ 459 ), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), and assault with a deadly weapon, a chair. (§ 245, subd. (a)(1).) He admitted a prison prior (§ 667.5, subd. (b)) after the verdict was rendered, and was sentenced to an aggregate five-year prison term. The charges arose from defendant’s unannounced and sudden entry into the residence of his on-again, off-again girlfriend, Beth, to assault a man, Keith, who was visiting her at the time. At trial, defendant claimed he rushed in to protect Beth because he thought she was in danger.
Unless otherwise indicated, all further statutory references are to the Penal Code.
The information alleges that the burglary was residential, although it did not refer specifically to the statute defining first degree burglary. (§ 460, subd. (a).)
Defendant was acquitted of a fourth count, alleging that defendant transported methamphetamine. (Health & Saf. Code, § 11379, subd. (a).)
On appeal, defendant claims that (1) the trial court erred in failing to give a mistake of fact instruction to the jury respecting the specific intent element of the burglary count; (2) one of the aggravated assault counts should be stricken as there was but one continuous assault; (3) the sentences for both of the assault counts should have been stayed pursuant to section 654 since assault was the alleged target crime of the burglary; and (4) the abstract of judgment needs amending to show only one conviction for assault with a deadly weapon, rather than two such convictions. We affirm the convictions but modify the judgment to stay the sentences for both assault counts, and direct that the abstract of judgment be corrected.
BACKGROUND
Defendant and Beth had a tumultuous on-again, off-again, relationship of approximately 10 years’ duration. During one of their “off-again” periods, Beth dated Keith, a friend of her sister’s, whom Beth had known for six or seven years. On March 1, 2007, defendant and Beth were trying to work out their problems. Because Beth wanted to get to bed early and ready herself for a day at her son’s school, she told defendant he could not come over that night. However, Keith came over to Beth’s residence at around 9:00 p.m. that evening. Beth was angry at Keith for being there; she was worried defendant would come over and get the wrong idea.
Beth and Keith sat down at the kitchen table and talked, going over some paperwork. Eventually, Beth told Keith he had to leave. Keith put his hand on Beth’s shoulder and told her that he just wanted to know she was okay. At that point, they heard a voice from outside the window, that Beth recognized as defendant’s voice, saying, “You lying fucking whore”; so “that’s why I couldn’t come over.”
When the police arrived, Beth reported hearing defendant say, “You fucking bitch” from outside, and in his own testimony, defendant acknowledged he used the term “fucking bitch, ” although he asserted the statement was directed to Keith.
Immediately thereafter, defendant rushed inside. Defendant immediately started punching Keith. Defendant struck Keith multiple times. At some point, defendant picked up a chair and hit Keith on the back with it. He also put Keith in a headlock. Defendant dragged Keith outside, pulling Keith’s shirt off in the process. Once the men were outside, Beth called 911 and defendant left.
A police officer heard the dispatch about the altercation, which indicated defendant had left in a brown van, and initiated a traffic stop upon spotting the van. Upon being asked, defendant admitted he had been in a verbal argument with another man that had escalated into a physical altercation at his girlfriend’s house. Defendant also told the officer that he believed Beth was seeing the other man who was present at her house, and he was angry about it. Defendant did not mention anything about fearing Keith was a danger to Beth. Defendant was subsequently arrested and his van was searched. During an inventory search of the van, a black shaving kit containing methamphetamine and paraphernalia used to ingest methamphetamine was found.
On March 28, 2007, defendant was charged by way of information with residential burglary (§ 459, count 1) with a special allegation that another person was present (§ 667.5, subd. (c)(21)), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1), count 2); assault with a deadly weapon, a chair (§ 245, subd. (a)(1), count 3); and transportation of methamphetamine. (Health & Saf. Code, § 11379, subd. (a), count 4.) It was further alleged that defendant had been previously convicted of a felony and served a prison term. (§ 667.5, subd. (b).)
Defendant was tried by a jury and convicted of counts 1-3. The jury acquitted defendant on count 4, the drug charge. Following the verdicts, defendant admitted the prison prior allegation. At sentencing, the court imposed an aggregate term of five years, as follows: the midterm of four years was imposed for the burglary count; a concurrent term of three years was imposed for count 2; a term of three years was imposed for count 3, but was stayed pursuant to section 654; and a one-year enhancement was imposed consecutive to count 1 for the prison prior.
On October 20, 2009, defendant timely appealed.
DISCUSSION
1. The Court Did Not Err in Failing to Instruct, Sua Sponte, on Mistake of Fact as a Defense to Burglary, Where the Alleged Mistake of Fact Was Not Reasonable.
Defendant argues that his burglary conviction must be reversed because the trial court failed to instruct the jury, sua sponte, that his mistake of fact as to whether or not Beth was in danger, requiring his aid, negated the specific intent to commit a felony required to support a conviction for burglary. We disagree.
In criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 157.) The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. (People v. St. Martin (1970) 1 Cal.3d 524, 531.)
This obligation includes the duty to give instructions on any affirmative defense for which the record contains substantial evidence, that is, evidence sufficient for a reasonable jury to find in favor of the defendant. (People v. Salas (2006) 37 Cal.4th 967, 982.) In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence; instead, it determines only whether there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt. (Ibid., citing People v. Jones (2003) 112 Cal.App.4th 341, 351.) We review the record to determine whether defendant presented substantial evidence to support the claimed defense and thus require the trial court to give the jury the mistake of fact instruction sua sponte. (See People v. Federico (2011) 191 Cal.App.4th 1418, 1422.)
Here, there is no substantial evidence to support a mistake of fact defense. Defendant testified at trial that he went to Beth’s residence out of concern for her when she did not pick up the phone, that he heard her tell Keith to leave in a stern manner, that Beth had previously told him that Keith “weirded her out, ” and that defendant saw Beth flinch when Keith touched her on the shoulder from behind. However, in his pretrial statements to police, he failed to mention he believed Beth needed protection. Instead, he reported that he believed Beth was seeing the man who was there and he was angry over it.
Defendant also admitted that he made the statement “you fucking bitch” while outside, but asserted at trial that the statement was directed at Keith. Whether he said “bitch” or “whore, ” both terms are generally used to describe females rather than males. Merriam-Webster’s Collegiate Dictionary (10th ed. 1996) page 117 defines a bitch as “the female of the dog, ” and on page 1351, a whore as “a woman who engages in sexual acts for money.” Considered in light of Beth’s testimony that defendant also made the statement, “that’s why I couldn’t come over, ” it is more reasonable to conclude it was addressed to Beth and that it reflected anger and jealousy, rather than concern for her wellbeing.
We recognize that a male may refer to another male as “bitch” to impugn his masculinity, but that was not the context used here.
There was not sufficient evidence to warrant giving the mistake of fact instruction with respect to the specific intent requirement for the burglary count, so there was no error.
2. Multiple Convictions Are Proper for a Series of Acts Committed Pursuant to the Single Objective of “Beating Keith Up.”
Defendant argues that count 3 should be stricken because both assaults were committed against the same victim, close in time, and were committed during an indivisible course of conduct. In short, defendant argues that the beating he administered constituted a continuous crime. He relies on cases not dealing with this precise issue for the general proposition that a single assault charge may result from multiple blows. (People v. Oppenheimer (1909) 156 Cal. 733, 739-740 [challenging adequacy of information insofar as it failed to specify the nature of the deadly weapon with which assault was to have been committed]; People v. Mitchell (1940) 40 Cal.App.2d 204, 209-210 [challenging adequacy of the information on grounds it failed to allege or specify the kind or character of the force used by defendant in the assault].) While we agree that defendant may not be separately punished for the two assaults (more fully discussed in the next section), we disagree with the assertion that multiple convictions were barred.
Cases are not authority for propositions not considered. (People v. Jennings (2010) 50 Cal.4th 616, 684.)
Section 654, subdivision (a), provides 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.” Section 654 precludes multiple punishments not only for a single act, but also for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; People v. Tarris (2009) 180 Cal.App.4th 612, 626.)
Two tests have been applied to determine whether section 654 has been violated. The first test examines whether the offenses arise out of a single act. (People v. Gbadebo-Soda (1989) 215 Cal.App.3d 1371, 1375, citing Neal v. State of California (1960) 55 Cal.2d 11, 18, fn. 1.) The other test applies where a course of conduct violates more than one statute and comprises an indivisible transaction. (Gbadebo-Soda, at p. 1375.) Whether offenses are “indivisible” for these purposes is determined by the defendant’s intent and objective. (Neal, at p. 19.) If all of the offenses were incident to one objective, the defendant may be punished for any one such offense, but not for more than one. (Ibid.; see also People v. Cleveland (2001) 87 Cal.App.4th 263, 267.)
Nevertheless, section 654 only precludes multiple punishment, not multiple convictions. (People v. Miller (1977) 18 Cal.3d 873, 885; see also People v. Coleman (1989) 48 Cal.3d 112, 162.) The proscribed multiple punishment may result from the imposition of multiple sentences even though the sentences are made to run concurrently. (People v. Duff (2010) 50 Cal.4th 787, 796; see also People v. Diaz (1967) 66 Cal.2d 801.)
Even where an entire transaction may be reasonably viewed as constituting the commission of a single punishable offense, the remedy of staying punishment for duplicative counts is deemed an adequate remedy. (People v. Lopez (1992) 11 Cal.App.4th 844, 850, quoting In re Adams (1975) 14 Cal.3d 629, 635.) Thus, where a defendant sold two kilos of cocaine to undercover officers, after transporting the drugs, he could be convicted of two violations of Health and Safety Code section 11352, subdivision (a), although he could only be punished for one violation. (Lopez, at pp. 847-850.)
The cases on which defendant relies (People v. Oppenheimer, supra, 156 Cal. 733, and People v. Mitchell, supra, 40 Cal.App.2d 204) involved situations in which the People charged a single assault, but where the evidence showed multiple blows. Those cases involved challenges to the adequacy of the accusatory pleadings, and are inapposite. We are aware that a prosecutor might charge a single offense arising from a fight in which multiple blows are struck, where others might charge separate violations. However, that is the prerogative of the district attorney. (People v. Vieira (2005) 35 Cal.4th 264, 304.) Section 954 permits multiple convictions insofar as an accusatory pleading may charge different statements of the same offense, and provides that a defendant may be convicted of any number of offenses charged. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1474.) As in Johnson, supra, successive acts of violence against a victim within a short time span, resulting in separate injuries, justify separate convictions.
Most authorities that consider whether an offense is a continuous crime concern questions relating to the statute of limitations (see People v. Terry (2005) 127 Cal.App.4th 750, 763-764) or the need for the prosecutor to make an election (see People v. Thompson (1984) 160 Cal.App.3d 220, 223-224), or the need for unanimity instructions. (See People v. Sanchez (2001) 94 Cal.App.4th 622, 631.) Other cases deal with offenses where the defendant is under a continuing duty to do an act which he fails to do. (Wright v. Superior Court (1997) 15 Cal.4th 521, 525 [sex offender registration].)
Here, there were multiple volitional criminal acts committed by defendant, each of which fulfilled the elements of the crime of aggravated assault, and each of which resulted in separate discrete injuries. Although the prosecutor could have charged a single count, a separate crime was completed each time the defendant struck a blow with the requisite mental state. Multiple convictions for the crime of aggravated assault based on separate acts were proper, although multiple punishment, which we discuss in the next section, is prohibited.
3. Because the Prosecution’s Theory of Burglary Was that Defendant Entered to Commit Assault, Separate Punishment for Burglary and Either Assault is Prohibited.
As discussed in section 2, section 654 precludes multiple punishment for an indivisible course of conduct. (People v. Lee (1980) 110 Cal.App.3d 774, 785.) Concurrent sentences for crimes based on one act or indivisible transaction constitute multiple punishment. (Ibid.) The statute has also been held to preclude separate punishment for both burglary and the felony objective or target of the burglary because the crimes are committed in an indivisible course of conduct with one purpose. (See People v. Le (2006) 136 Cal.App.4th 925, 930-931 [burglary committed for purpose of robbery precluded separate terms for both crimes].) Section 654 precludes punishment for both burglary and theft where the burglary is based on an entry with intent to commit theft. (People v. Alford (2010) 180 Cal.App.4th 1463, citing People v. Bernal (1994)22 Cal.App.4th 1455, 1458.) And where the burglarious entry was perpetrated with the intent to commit a felony assault, separate punishment is barred. (People v. Hester, supra, 22 Cal.4th at p. 294.)
Here, the prosecution’s theory was that defendant entered the residence with the intent to assault Keith: “to attack Keith, to beat Keith up.” The burglary was thus incidental to the single objective of beating Keith up, making both of the charged assaults the objective of the burglary. In our view, the defendant may be punished for any one of such offenses but not for more than one. (People v. Perez (1979) 23 Cal.3d 545, 551.) Because the sentence for residential burglary is greater than the sentence for assault by means likely to produce great bodily injury or assault with a deadly weapon, the sentence for burglary should stand, while the concurrent term for count 2, as well as count 3, must be stayed.
4. The Abstract of Judgment Must Be Corrected.
Defendant asserts that the abstract of judgment incorrectly reflects that he was convicted of two counts of assault with a deadly weapon. He requests an order directing the clerk of the court to amend the abstract of judgment. Respondent agrees. We accept the parties’ agreement and direct the superior court clerk to amend the abstract of judgment to reflect that defendant was convicted in count 2 of assault by means likely to produce great bodily injury, and in count 3 of assault with a deadly weapon.
DISPOSITION
The convictions are affirmed. The sentence for count 2 is modified to reflect that the term for that count is stayed pursuant to section 654. The superior court clerk is directed to prepare an amended abstract reflecting that the conviction for count 2 is for assault by means likely to produce great bodily injury, while the sentence for count 3 is for assault with a deadly weapon, and that the sentences for both counts 2 and 3 are stayed pursuant to section 654. The superior court shall prepare a minute order reflecting the modifications and forward it, along with the amended abstract of judgment, to the Department of Corrections and Rehabilitation.
We concur: McKinster, J., King, J.