Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA060537, Mark S. Arnold, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Tommy David Boyden appeals the judgment entered following his conviction by jury of three counts of stalking, four counts of making a criminal threat and one count of dissuading a witness. (Pen. Code, §§ 646.9, subd. (a), 422, 136.1, subd. (b)(1).) The trial court found Boyden had one prior conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and one prior conviction within the meaning of section 667, subdivision (a)(1) and sentenced him to a term of 18 years and 4 months in state prison.
Subsequent unspecified statutory references are to the Penal Code.
In response to Boyden’s claim the trial court committed section 654 sentencing error, we order the judgment modified to reflect a stay of the concurrent term imposed on count 6 and a stay of the consecutive term imposed on count 7. Sua sponte, we remand the matter for sentencing on count 2.
By letter dated March 23, 2009, we invited the parties to address by supplemental letter brief whether the matter should be remanded for sentencing on count 2. (Gov. Code, § 68081.)
FACTS AND PROCEDURAL BACKGROUND
1. Offenses against Sharon (counts 1-4).
Sharon and Boyden dated for about one year until he broke up with her in 2000. Sharon testified that, nine months later, Boyden “started coming back to my house, and I couldn’t stop him.” On May 7, 2004, Boyden tried to drag Sharon from her house with her mouth covered but was interrupted by Sharon’s daughter. Sharon called the police and reported the incident. Boyden continued to harass Sharon and threatened to sell her identifying information, which he had learned when they were dating. Boyden once came to Sharon’s house, demanded entry, put a handgun to Sharon’s head and said, “I’m going to have to kill you now.” Sharon prayed aloud until Boyden fell asleep with the gun in his hand. When he left, he told her not to tell anyone. Sharon did not immediately report this incident to the police because Boyden frequently told her that if he ever went to jail, something would happen to her. Sharon also received telephone calls from individuals who said that if anything happened to Boyden, she would get it. The foregoing conduct related to count 1, stalking between May 7 and December 21, 2004.
Sharon began to record Boyden’s telephone conversations and informed Boyden of her practice but he continued to threaten her. On one occasion, Boyden went to Sharon’s work, got past the security guard and repeatedly told her tonight was the night she would die. At that point, Sharon went to the police with the tape-recorded conversations and reported the previous assault with a firearm. Excerpts from the tape-recorded conversations were offered in support of counts 2, 3 and 4.
Count 3, dissuading a witness, was based on several recorded telephone messages left on Sharon’s answering machine by Boyden on March 25, 2005. In one message, Boyden stated the next time Sharon went to the police, he would “blow [her] ass away.” In another, Boyden said the next time Sharon saw a gun in his hand, she “better get on [her] knees and pray.”
Count 2, making a criminal threat, was based on a tape-recorded telephone conversation on May 24, 2005, in which Boyden demanded that Sharon take a lie detector test or “your ass is mine. I’m going to get you.”
Count 4 also alleged making a criminal threat. It related to an incident on May 20, 2005, when Boyden came to Sharon’s home and demanded entry after he had threatened to harm her. Sharon refused and threatened to call the police. Boyden left but telephoned Sharon and said that when he was at her home, he had a rope in his pocket and if she had opened the door, he would have killed her.
2. Rachelle (counts 5-8).
Rachelle met Boyden in May of 2005 and dated him for one month. When Rachelle tried to terminate the relationship, Boyden asked if she thought she “could just walk away” and began to stalk her, telephoning her repeatedly and appearing unannounced at her work and home. On one occasion in late June of 2005, Boyden insisted that Rachelle meet him during her lunch break. During that meeting, Boyden threatened to harm Rachelle and said he had a gun and was prepared for a shootout with the police. Boyden threatened to “blow her head off” either in this meeting or at Rachelle’s home. On another occasion, Boyden telephoned and said he wanted to kill some girl and then would probably kill himself. Boyden then arrived at Rachelle’s home and said she had to leave with him. Rachelle complied but was terrified because Boyden was drinking. He drove to the rear of a Sears store and said he “felt like bashing [her] head in.”
Counts 5 and 6 were based on Boyden’s conduct on June 29 and 30, 2005, which referred to the threats to “blow her head off” and “bash her head in.”
On July 1, 2005, Rachelle insisted that Boyden stop harassing her. Boyden became irate, demanded to know where she was and threatened to hurt her. Rachelle drove to the Carson sheriff’s station and filed a report. Rachelle received a telephone call from a coworker who advised that Boyden was waiting for Rachelle at her work. Boyden was arrested at Rachelle’s place of work on July 1, 2005. He made threatening telephone calls to Rachelle from jail, even after she obtained a restraining order against him on August 17, 2005. Rachelle kept a log of calls from Boyden between July 5, 2005 and January 15, 2006. On one day, Boyden telephoned her 89 times. Rachelle did not know when Boyden would be released from jail so she sold her home and quit her job to avoid being a “sitting duck.”
Counts 7 and 8 were based on Boyden’s conduct after his arrest. Count 7 alleged stalking (§ 646.9, subd. (a)) between July 1 and August 16, 2006; count 8 alleged stalking in violation of a court order (§ 646.9, subd. (b)) between August 17, 2005 and August 8, 2006.
Stalking in violation of a court order in violation of section 646.9, subdivision (b), is a felony punishable by a prison term of two, three, or four years. Stalking in violation of section 646.9, subdivision (a), is punishable in the county jail or in the state prison for 16 months, 2 years or 3 years. (§ 18.)
3. Verdicts and sentencing.
The jury convicted Boyden as charged. The trial court found Boyden had a prior conviction of first degree burglary within the meaning of the Three Strikes law and section 667, subdivision (a)(1).
Before sentencing, the trial court granted a motion for new trial as to count 8, stalking in violation of a court order (§ 646.9, subd. (b)). The trial court found the restraining order served on Boyden was not signed by a judge and therefore, as a jurisdictional matter, no valid court order had been violated. The trial court reduced the conviction in count 8 to stalking. (§646.9, subd. (a).)
The trial court selected count 8 (stalking Rachelle between August 17, 2005 and August 8, 2006) as the base term and imposed the upper term of three years, doubled on account of the strike, to six years. As to count 7 (stalking Rachelle between July 1, 2005 and August 16, 2005), the trial court imposed a consecutive term of 16 months, one-third the middle term or 8 months, doubled on account of the strike, “because this conduct occurred on different dates.” As to count 5, making a criminal threat to Rachelle on June 29, 2005, the trial court imposed a consecutive term of 16 months because this offense occurred on a different day. The trial court agreed with defense counsel’s argument that count 6, making a criminal threat on June 30, 2005, arose from the same operative facts as count 5, and imposed a concurrent term of four years on count 6.
As to the offenses committed against Sharon, the trial court imposed a consecutive term of 16 months on count 1, stalking in 2004, a full consecutive term of two years on count 3, dissuading a witness, and a consecutive term of 16 months on count 4, making a criminal threat on May 20, 2005. The trial court indicated it imposed that term consecutively because the offense occurred on a separate date.
The trial court added five years for the prior serious felony conviction for a total term of 18 years and 4 months in state prison.
The trial court neglected to impose sentence on count 2, a violation of section 422 committed against Sharon P. on May 24, 2005. Nonetheless, the abstract of judgment indicates the trial court imposed a concurrent term on count 2.
CONTENTIONS
Boyden contends he can be punished only on one count per victim. Thus, the terms imposed on all counts, except count 3 and count 8, violate section 654 and must be stayed. (People v. Britt (2004) 32 Cal.4th 944, 952.)
The People assert Boyden has waived these claims because he failed to object in the trial court at the time of sentencing. (People v. Scott (1994) 9 Cal.4th 331, 356.) However, defense counsel specifically objected at the time of sentencing to imposition of multiple punishment per victim.
DISCUSSION
1. The prohibition against multiple punishment.
Section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct if all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Section 654 provides in pertinent 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.”
If the defendant harbors separate though simultaneous objectives in committing the statutory violations, multiple punishment is permissible. (People v. Britt, supra, 32 Cal.4th at p. 952.) The defendant’s intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162.)
When section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. (People v. Sloan (2007) 42 Cal.4th 110, 116.)
2. The terms imposed on counts 6 and 7 must be stayed.
Boyden contends the offenses against each of the two victims were part of one objective, the irrational pursuit of Sharon from May of 2004 to May of 2005, and the irrational pursuit of Rachelle from June 2005 until August 2006. Boyden argues the offenses alleged as to each victim were temporally proximate (People v. Evers (1992) 10 Cal.App.4th 588, 603, fn. 10) and concludes there was no evidence of multiple objectives as to either victim (People v. Pitts (1990) 223 Cal.App.3d 1547, 1560). He concludes the term imposed on every count, except count 8 as to Rachelle and count 3 as to Sharon, must be stayed.
As to count 6 the trial court found section 654 applied but imposed a concurrent term. The term should have been stayed. (See People v. Deloza (1998) 18 Cal.4th 585, 592 [concurrent term constitutes multiple punishment].)
As to count 7, Boyden asserts, and we agree, that, having sentenced Boyden on count 8, the term imposed on count 7 should have been stayed. This is so because stalking, the offense alleged in counts 7 and 8, is a continuous course of conduct crime. (People v. McCray (1997) 58 Cal.App.4th 159, 168-170; People v. Jantz (2006) 137 Cal.App.4th 1283, 1292; People v. Zavala (2005) 130 Cal.App.4th 758, 769.) Here, count 7 related to conduct by Boyden before a restraining order was served on him on August 17, 2007, and count 8 related to conduct after service of the restraining order. When the trial court reduced count 8 to stalking in violation of section 646.9, subdivision (a), because the People failed to prove a valid restraining order had been served on Boyden, counts 7 and 8 alleged the same course of conduct, threatening telephone calls from jail. Indeed, the prosecutor conceded in closing argument that counts 7 and 8 alleged essentially the same course of conduct.
Absent anything to differentiate the stalking conduct that was committed before August 17, 2005 from that which followed, the term imposed on count 7 must be stayed.
3. Boyden’s remaining contentions lack merit.
Boyden’s remaining contentions relate to the offenses committed against Sharon. As to Sharon, Boyden was convicted of stalking from May of 2004 until December of 2004 (count 1), two counts of making a criminal threat, one on May 20, 2005 (count 4), and one on May 24, 2005 (count 2), and one count of dissuading a witness on March 25, 2005 (count 3).
Boyden concedes a consecutive term was proper on count 3, but asserts any punishment on counts 1, 2 and 4 should have been stayed under section 654.
We disagree. Count 1 alleged stalking in 2004. Counts 2, 3 and 4 were based on specific incidents that occurred months later. Count 3, dissuading a witness, was based on four specific telephone messages left on Sharon’s phone on March 25, 2005. Count 4, criminal threats, was based on Boyden’s conduct in arriving at Sharon’s house after threatening to kill her on May 20, 2005, and telling her later that day on the telephone that he had a rope in his pocket and had she let him into the house, he would have killed her. The People’s evidence in support of count 2 was a tape-recorded conversation on May 24, 2005 in which Boyden threatened to harm Sharon if she did not take a polygraph test he had arranged for her.
Thus, count 1 alleged a course of stalking in 2004 and the remaining counts alleged specific incidents of criminal conduct in March and May of 2005. More importantly, the evidence permitted the trial court to find each count was marked by a separate intent. Boyden’s intent in stalking Sharon from May 7 until December 21, 2004 was to persuade Sharon to resume a relationship with him. Boyden’s objective in dissuading Sharon’s testimony on March 25, 2005 was to prevent prosecution. Those intents were separate from his intent to victimize her with criminal threats on May 20 and May 24 of 2005. Consequently, separate punishment on each of these counts would not violate section 654.
However, as previously noted, the trial court neglected to impose sentence on count two. We will order the matter remanded for that purpose.
DISPOSITION
The judgment is affirmed as modified to stay the terms imposed on counts 6 and 7 and is remanded for sentencing on count 2.
We concur: CROSKEY, J., KITCHING, J.