Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.No. BB730348.
Duffy, J.
A jury convicted defendant Todd David Burpee of multiple offenses arising out of his kidnapping, physical assault, and sexual assault of a 17-year-old girl. He claims that there was insufficient evidence to sustain two of the convictions, that the trial court erred in calculating his sentence, and that there was insufficient evidence for the court to order him to take an acquired immune deficiency syndrome (AIDS) test.
We find no defects in the trial and will affirm the judgment.
Defendant has filed a petition for writ of habeas corpus in a separate cause, which we have considered with this appeal. (In re Todd David Burpee on Habeas Corpus (H036878).) By separate order of this date, we deny the petition for habeas corpus.
PROCEDURAL BACKGROUND
A jury convicted defendant of two counts of assault with intent to (1) rape and (2) commit forcible sexual penetration (Pen. Code, § 220, former subd. (a); Initiative Measure (Prop. 83, § 4, approved Nov. 7, 2006, eff. Nov. 8, 2006); see Pen. Code, §§ 261, 289), two counts of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)), one count of kidnapping to commit rape and forcible sexual penetration (§§ 209, subd. (b)(1), 261, 289), and one substantive count of forcible sexual penetration (§ 289, former subd. (a)(1); Stats. 2002, ch. 302, § 5). It found true allegations in all counts that he personally inflicted great bodily injury (§ 12022.7, subd. (a)) and, in the substantive sexual penetration count, an allegation under the “One Strike” law that he committed an aggravated form of kidnapping by substantially increasing the risk of harm to the victim and inflicted great bodily injury (§ 667.61, subds. (a), (c)(5), (d)(2); id., former subds. (e)(1), (e)(3); Initiative Measure (Prop. 83, § 12, approved Nov. 7, 2006, eff. Nov. 8, 2006). Defendant admitted an allegation that he committed the crimes while out of custody on his own recognizance (§ 12022.1).
All statutory references are to the Penal Code unless otherwise indicated.
Former section 667.61 (Stats. 1998, ch. 936, § 9, pp. 6874-6876) “distinguishes between, and includes both, aggravated and simple kidnapping as ‘circumstances.’ (See former § 667.61, subds. (d)(2), (e)(1), respectively.)” (People v. Byrd (2011) 194 Cal.App.4th 88, 102.) “[S]ubdivision (d)(2) of [former] section 667.61 refers to aggravated kidnapping, but subdivision (e)(1) of that same statute expressly excluded subdivision (d)(2) and included simple kidnapping as one of the qualifying circumstances: ‘Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5.’ ” (Id. at p. 101, italics deleted.)
The trial court sentenced defendant to serve a sentence of 25 years to life consecutive to 18 years in state prison.
FACTS
I. Prosecution Case
The jury heard testimony in court and a recorded statement the victim gave from a hospital bed. Together they produced the following evidence:
After her high school day ended on October 30, 2007, the 17-year-old victim bicycled home. She lived in an apartment building. As she prepared to lock up her bicycle outside the building garage, she noticed a man standing nearby and, at his request, opened a locked door to let him into the apartment structure.
The victim entered a stairwell and defendant followed her, causing her alarm. She returned to the bicycle parking area, where the man attacked her. He told her either to take off her pants or not to scream, otherwise he would kill her. He hit her, put his hand over her mouth to stifle her screaming, and forced her to the ground.
Once the victim was on the ground, defendant twisted her neck and was strangling her, causing great pain. She lost consciousness and regained it. At that point defendant began to slam her head into the concrete paving.
Defendant dragged the victim facedown along the ground and placed her in the back seat of a car. The assailant draped a large light-green cloth over her. She noticed some items in the back seat of the car, including a shoebox.
The man drove her away in the car. As he was driving, she heard him talking to someone he called Sara on his cell phone. This individual turned out to be Sara Jean Dahlen, defendant’s then-girlfriend.
Defendant stopped the car and pulled down the victim’s pants and underwear to the middle of her thighs. All along, since being taken to the car, she had pretended to be unconscious, and she continued to do so. Defendant inserted something—she sensed that it was his finger but did not see if that was the case—in her vagina. He then placed the cloth back on her and left her alone in the car.
The victim waited awhile, got out of the car, and ran. Despite her state of bloody dishevelment, people passing by in their vehicles refused to stop and help her. Eventually, however, someone rendered assistance.
At the hospital, the victim was found to have injuries consistent with a sustained assault and strangulation.
The police found a wealth of evidence identifying defendant as the assailant. For example, they searched his car for evidence and found blood and the victim’s missing earring in the back seat. Blood containing the victim’s deoxyribonucleic acid (DNA) was found on defendant’s sweatshirt and on items and material retrieved from his car. The victim had described to police the logo on the shoebox in the back seat of the car used to transport her, and they found a shoebox with that logo in the back seat of defendant’s car.
II. Defense Case
Defendant presented no evidence, but defense counsel cross-examined prosecution witnesses.
DISCUSSION
I. Sufficiency of Evidence of Two Convictions on Each of Two Charged Crimes
Defendant claims that there was insufficient evidence to support the jury’s findings that he committed two violations of assault for the purposes of the commission of a rape and sexual penetration and assault with force likely to cause great bodily injury.
There is no merit to this contention.
A. Additional Procedural and Factual Background
As noted, the jury convicted defendant of two counts of assault with intent to rape and commit forcible sexual penetration (§§ 220, subd. (a)(2), 261, 289) and two counts of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)).
The victim’s testimony pointed to two assaults separated in time. “I was strangled and then after that I don’t remember, ” she testified. “What is the next thing you remember after everything went black?” the prosecutor asked. “I got my conscious back at some point and I was laying on the ground, and I was hardly able to open my eye, and the next thing I know my head was banging against the concrete several times.”
The section 220 charges were presented in counts two and three, the section 245 charges in counts four and five. The second amended information and the verdict forms contained identical language for each two-count set of charges.
For example, the second amended information, which was the last version of the charging documents to be filed, alleged:
During closing argument, the prosecutor argued for two convictions under sections 220 and 245 each. The prosecutor reminded the jury of evidence that defendant strangled the victim, which constituted one section 220 violation and one section 245 violation. He also reminded the jury of evidence that defendant slammed her head on the ground, which constituted a second section 220 violation and a second section 245 violation. He argued that these were two separate assaults, each warranting two convictions.
The prosecutor cautioned that the jury should return two convictions on the sections 220 and 245 charges only if it was satisfied that defendant committed two separate acts, each of which justified finding him guilty on the first and second set of charges. If the jury concluded that defendant was simultaneously strangling and slamming the victim, it should find him guilty of one violation of sections 220 and 245.
The prosecutor argued: “Now count three, when he slams her head into the ground, this is a separate act. That is why it is charged separately. It is a separate crime because it is a separate act.
The jury was instructed on separate acts as follows: “With respect to the crimes charged in Counts 2 and 3, in order to find the defendant guilty you must all agree that the People have proved that the defendant committed the same act or acts necessary for each crime. However, you may not use the same acts to satisfy the elements of both Counts, except with respect to the element of intent. [¶] With respect to the crimes charged in Counts 4 and 5, in order to find the defendant guilty you must all agree that the People have proved that the defendant committed the same act or acts necessary for each crime. However, you may not use the same acts to satisfy the elements of both counts.”
In the written instructions, the jury was told it could use the same element of intent with regard to counts two and three. In the oral instructions, however, it was told it could use the same element of intent with regard to counts four and five. The trial court said, “you may not use the same acts to satisfy the elements of both counts except with respect to the element of intent with respect to the crimes charged in counts four and five.” Defendant does not complain on appeal about the discrepancy, however, and there is no issue before us in this regard.
B. Applicable Law
The law struggles to determine the number of convictions that the trier of fact may return when criminal acts follow in succession with the victim remaining in peril uninterruptedly. On the one hand, people who abuse their victims repeatedly and continually, even in the same place and at the same time, may subject themselves to multiple convictions, depending on the applicable statute or statutes. (People v. Harrison (1989) 48 Cal.3d 321, 334 (Harrison).) On the other hand, there must be a limit on the prosecution’s ability to fragment crimes. The prosecution should not be allowed to adopt what may be termed a fractal approach, one that allows it to parse a chain of acts into smaller component acts and obtain multiple convictions. “If one unlawfully assails another with his two hands, first striking at him with one hand and immediately thereafter with the other, no one would say that there were two offenses. The offense would be the one unlawful attempt... to commit a violent injury... and each effort made... to accomplish this result would constitute only a single element of that attempt.” (People v. Oppenheimer (1909) 156 Cal. 733, 740; accord, People v. Epps (1981) 122 Cal.App.3d 691, 702-703 [dictum; no “ ‘separate crimes of battery if the actor throws a right-hand punch to his victim and immediately follows it with a left-hand punch.’ ”].) “ ‘The state cannot split up one crime and prosecute it in parts.’ ” (People v. Stephens (1889) 79 Cal. 428, 430 [speaking of successive prosecutions].)
Not at issue as we consider defendant’s claim are the following well-settled principles of law regarding multiple punishments and multiple convictions: “ ‘In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct.... Section 954 generally permits multiple conviction. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same ‘act or omission.’ When section 954 permits multiple conviction, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. [Citations.]’ ” (People v. Anderson (2009) 47 Cal.4th 92, 117.) Thus, cases that the People cite for these principles, including People v. Sloan (2007) 42 Cal.4th 110, 119, and People v. Reed (2006) 38 Cal.4th 1224, 1230, do not factor into our analysis.
The outcome in this case largely is determined by Harrison, supra, 48 Cal.3d 321. In People v. Johnson (2007) 150 Cal.App.4th 1467 (Johnson), this court distilled the reasoning of Harrison, as follows:
“In Harrison, the Supreme Court rejected the contention that the defendant could not be convicted of multiple acts of digital penetration committed in the course of a 10-minute attack on the victim. The defendant had argued ‘that multiple digital penetrations, committed during a brief “continuous” assault upon a struggling victim, constitute only a single violation of section 289.’ (Harrison, supra, 48 Cal.3d at p. 327.) The statute under which the defendant had been convicted proscribed ‘penetration, however slight, of the genital or anal openings of another person’ by any foreign object if accomplished by force or fear. (Former § 289, subd. (a) [Stats. 2002, ch. 302, § 5, p. 1207; see also Stats. 2002, ch. 787, § 9, p. 4997, & § 37, p. 5028].) The defendant had attacked the victim in her bedroom and, in the course of the ensuing struggle, he inserted his finger in her vagina. The victim’s resistance caused the defendant to remove his finger. He reinserted it twice more over the course of the attack, which lasted a total of seven to 10 minutes. (Harrison, supra, 48 Cal.3d at pp. 325-326.)
“Harrison’s concern was with the conduct minimally necessary to trigger a statutory violation and thereby warrant conviction. Although there was no mention in former section 289 of what constituted a completed crime, both the rape and sodomy statutes specified: ‘Any sexual penetration, however slight, is sufficient to complete the crime.’ (§ 263, see § 286, subd. (a).) Since ‘section 289 has always made clear that the crime is committed simply by causing a proscribed “penetration, however slight, ” ’ (Harrison, supra, 48 Cal.3d at p. 328), the Supreme Court concluded that ‘a new and separate violation of section 289 is “completed” each time a new and separate “penetration, however slight” occurs.’ (Id. at p. 329.) The court rejected a test employed by People v. Hammon (1987) 191 Cal.App.3d 1084, that included consideration of whether there had been an ‘ “appreciable passage of time” ’ and a ‘ “reasonable opportunity for reflection.” ’ (Harrison, supra, 48 Cal.3d at pp. 332-333.) In disapproving Hammon, the court stressed the need to analyze ‘the sufficiency of the evidence in terms of the particular statutory violations at issue.’ (Id. at p. 332.) Since the defendant had made three separate penetrations of the victim’s vagina, he had completed three separate violations of the statute, and three convictions were warranted. (Id. at p. 334.)” (Johnson, supra, 150 Cal.App.4th at p. 1475.)
B. Analysis
Harrison, supra, 48 Cal.3d 321, leads us to reject defendant’s claim.
Here as in Harrison there were separate violations of the criminal law, done in this case to further defendant’s sexual aim or aims. Defendant first strangled the victim, in what the jury could infer was an attempt to subdue her to facilitate his sexual assault, an act that violated section 220 and section 245. A period of time passed during which the victim was unconscious. When she awoke, defendant committed another violation of sections 220 and 245 by slamming her head against the ground, in what the jury could infer was a second attempt to subdue her to facilitate his eventual sexual assault.
On this record, we cannot tell how much time separated the two assaults. It may have been little. But there is evidence from which a rational trier of fact could conclude that the two assaults were separated in time.
We need not adopt wholesale the reasoning of Harrison, supra, 48 Cal.3d 321, to reach this conclusion. This is a difficult area of the law and Harrison’s reasoning and result must be limited to the statute it addressed and ones that apply by analogy.
For instance, it is unlikely that Harrison could be extended to the point that a bank robber who reaches over the counter and scoops money out of a teller’s various drawer slots is guilty of as many crimes as the drawer has slots. Thus, as defendant asserts, it is not enough to say in every case that once a crime is complete every subsequent act constitutes a new and separate violation. The fact that the bank robbery would be complete once the robber scoops the money out of the first slot would not justify multiple convictions based on the number of slots the drawer has. (See People v. Hertzig (2007) 156 Cal.App.4th 398, 401-403 [defendant who possessed 30 pornographic videos involving children on a single computer guilty of but one violation of section 311.11].) “[W]e reject the notion that possession of multiple images on one computer under the present circumstances can result in multiple violations of the possession statute.” (Id. at pp. 401-402.)
To the extent that defendant’s argument contravenes Harrison and any logical extension of the facts of that case to this one, however, we are compelled to reject his assertion. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Harrison’s rule that “a new and separate violation of section 289 is ‘completed’ each time a new and separate ‘penetration, however slight’ occurs” (Harrison, supra, 48 Cal.3d at p. 329, italics deleted) can be extended only so far, lest there be a questionable fragmenting of crimes with unduly punitive results. (See People v. Oppenheimer, supra, 156 Cal. 733; People v. Stephens, supra, 79 Cal. 428; People v. Epps, supra, 122 Cal.App.3d 691.) But the Harrison rule does extend to this case.
The victim remained in peril without interruption and was not able to retreat to a place of safety only to be aggrieved later, a factual scenario that would mark separate offenses beyond cavil. At the same time, however, there was evidence that allowed a rational trier of fact to find that defendant engaged in more than a single uninterrupted assault on the victim, something that would arguably mark a single offense (but see Harrison, supra, 48 Cal.3d 321). Defendant strangled the victim, caused her to fall unconscious, and desisted from the strangulation. She awoke and he began to slam her head against the concrete paving after that. These were separate assaults under sections 220 and 245; each entitled the prosecution to seek separate convictions. This would be true under a test advantageous to defendants that Harrison disapproved, namely whether there had been an “appreciable passage of time, or... a reasonable opportunity for reflection.” (People v. Hammon, supra, 191 Cal.App.3d at p. 1099, fn. omitted.) Here, the jury could find either factor to exist under the evidence presented. In sum, even if the completion of a crime cannot always be the last word in determining the number of violations that occurs, the evidence here was sufficient for a rational trier of fact to impose all four convictions (Jackson v. Virginia (1979) 443 U.S. 307, 319), which ends our due process inquiry. Defendant’s claim is without merit.
We do not perceive the events here—i.e., the entire episode of defendant’s violence that is termed a transaction in the law’s bloodless language—to involve continuing offenses. Generally, a continuing offense extends over considerable time and involves uninterrupted conduct, such as failing to register as a sex offender or cultivating marijuana. “ ‘A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy.’ ” (U.S. v. Midstate Co. (1939) 306 U.S. 161, 166.) “The notion of ‘continuing offense’ has traditionally identified a type of offense fundamentally different from most known to the common law.... [A] criminal offense is typically completed as soon as each element of the crime has occurred. For example, a larceny is completed as soon as there has been an actual taking of the property of another without consent, with the intent permanently to deprive the owner of its use. The offense does not ‘continue’ over time. The crime is complete when the act is complete. A ‘continuing offense, ’ in contrast, is [one that consists of] an unlawful course of conduct that does perdure.” (U.S. v. McGoff (D.C. Cir. 1987) 831 F.2d 1071, 1078.)
II. Consecutive-sentencing Issue
Defendant claims that the trial court erred in imposing consecutive sentences on the two section 220 convictions obtained in counts two and three. We do not agree.
Defendant makes several arguments. First, he argues that section 654 applies because section 220 violations are crimes of assault, not sex crimes, and therefore section 667.6’s consecutive sentencing rules for more than one sex crime conviction do not apply. He argues that there was only one act and intent and the state is entitled to only one conviction under section 654. Next, he maintains that section 220 violations are akin to attempts, that attempts are lesser included offenses to completed crimes, that a criminal defendant cannot be punished for both a greater and a lesser included offense, and therefore because he is being punished for forcible sexual penetration (§ 289) he cannot additionally be punished for the attempt to commit that crime.
Subdivision (a) of section 654 provides in relevant 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.”
The Legislature has the “power to override section 654 by enactments that do not expressly mention the statute.” (People v. Palacios (2007) 41 Cal.4th 720, 730.) “[T]he Legislature, in enacting section 667.6, subdivision (c), was not required to cite section 654 to demonstrate its intent to create an exception to its provisions.” (Ibid.) Violations of section 220, except for assault with intent to commit mayhem, are sexual offenses. (People v. Pierce (2002) 104 Cal.App.4th 893, 898-899.) They are encompassed by section 667.6, subdivision (e)(9). Thus, section 654 does not apply. Defendant’s section 654–based contentions lack merit.
Defendant is correct that a violation of section 220 has been equated to an attempt to commit a substantive sexual offense listed in section 220. (People v. Holt (1997) 15 Cal.4th 619, 674.) Among the substantive sexual offenses listed in section 220 is section 289, forcible sexual penetration. The jury convicted defendant of forcible sexual penetration. He argues that he cannot be punished for both the section 220 violation, which amounts to a jury finding that he attempted to commit forcible sexual penetration, and section 289, the completed crime.
The general rule is that an actor cannot even be convicted of both an attempt to commit a crime and committing it if the same acts are involved. An “attempt is a lesser included offense of any completed crime.” (In re Sylvester C. (2006) 137 Cal.App.4th 601, 609, fn. omitted.) “A defendant... cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act.” (People v. Sanchez (2001) 24 Cal.4th 983, 987, disapproved on another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.) “ ‘To permit conviction of both the greater and the lesser offense “ ‘ “would be to convict twice of the lesser.” ’ ” ’ ” (People v. Medina (2007) 41 Cal.4th 685, 702.)
In this case, however, the acts are separate and defendant violated two distinct statutes.
Section 220 is a sexual offense (People v. Pierce, supra, 104 Cal.App.4th at pp. 898-899), but the acts committed here in violation of section 220 were violent nonsexual acts, i.e., strangulation and head battering. They were not the same acts as the act of defendant’s sexually penetrating the victim.
A section 220 violation is akin to an attempt but is not an attempt as commonly understood under section 21a; rather, it is a separate substantive offense that constitutes “an aggravated form of attempt[].” (People v. Pierce, supra, 104 Cal.App.4th at p. 899.)
We see no reason to apply the doctrine that forbids convictions (and a fortiori punishment) for lesser included and greater offenses “based upon... commission of the identical act” (People v. Sanchez, supra, 24 Cal.4th at p. 987), because (1) the acts were not identical and (2) the standard lesser-included-offense rule does not apply here, based as it is on an inapplicable rule regarding criminal attempts. There is neither a section 654 bar nor a lesser-included-offense bar to the consecutive sentence imposed here. We reject defendant’s claim.
III. Court-ordered AIDS Test
Defendant claims that the trial court abused its discretion in ordering him to undergo an AIDS test. We do not agree.
The trial court ordered defendant to submit to a blood test for human immunodeficiency virus (HIV) pursuant to section 1202.1.
Subdivision (a) of section 1202.1 calls for an AIDS test when a defendant has been convicted of certain offenses whose commission presents a possibility of HIV transmission. Defendant suffered a conviction of section 289, and section 1202.1 requires the test following a section 289 conviction “if the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim.” (Id., subd. (e)(6)(A).)
“[T]he probable-cause standard is a ‘ “practical, nontechnical conception” ’ that deals with ‘ “the factual and practical considerations of everyday life on which reasonable and prudent men... act.” ’ ” (Maryland v. Pringle (2003) 540 U.S. 366, 370.) It “ ‘is a fluid concept—turning on the assessment of probabilities in particular factual contexts....’ ” (Id. at pp. 370-371.) Given this malleable standard, we have no difficulty in concluding that the trial court’s order is supported by probable cause. The victim testified that defendant inserted some object in her vagina. She could not tell what it was. She surmised at trial that it could have been a finger, but she was not sure, and she told an attending paramedic that although she thought the assailant had inserted a finger, she was unsure whether he inserted his penis, although she was not aware of his doing so. When the police interviewed the victim, she answered “I don’t know” each time to separate questions whether defendant tried to insert his penis and whether he tried to ejaculate. As the victim was being taken by ambulance to the hospital, the paramedic performed a “detailed physical exam” and “noticed a possibility of urine or some sort of wetness down her vaginal area.” Having been strangled and subjected to head trauma a short time before the sexual assault, even if she had testified that she thought the object was a finger rather than a penis, her perception might not be sufficiently reliable to permit defendant to avoid AIDS testing. As it was, there was ample uncertainty about the object that defendant inserted in the victim. A penis is capable of transmitting HIV, the virus that causes AIDS. The order was proper.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P. J., Premo, J.
“COUNT 2
“On or about October 30, 2007, in the County of Santa Clara, State of California, the crime of ASSAULT WITH INTENT TO COMMIT FELONY, in violation of PENAL CODE SECTION 220(a), a Felony, was committed by TODD DAVID BURPEE who did assault Jane Doe with the intent to commit a violation of sections 261 and 289 of the Penal Code.”
“COUNT 3
“On or about October 30, 2007, in the County of Santa Clara, State of California, the crime of ASSAULT WITH INTENT TO COMMIT FELONY, in violation of PENAL CODE SECTION 220(a), a Felony, was committed by TODD DAVID BURPEE who did assault Jane Doe with the intent to commit a violation of sections 261 and 289 of the Penal Code.”
“COUNT 4
“On or about October 30, 2007, in the County of Santa Clara, State of California, the crime of ASSAULT BY MEANS OF FORCE LIKELY TO PRODUCE GREAT BODILY INJURY, in violation of PENAL CODE SECTION 245(a)(1), a Felony, was committed by TODD DAVID BURPEE who did commit an assault upon the person of Jane Doe by means of force likely to produce great bodily injury.”
“COUNT 5
“On or about October 30, 2007, in the County of Santa Clara, State of California, the crime of ASSAULT BY MEANS OF FORCE LIKELY TO PRODUCE GREAT BODILY INJURY, in violation of PENAL CODE SECTION 245(a)(1), a Felony, was committed by TODD DAVID BURPEE who did commit an assault upon the person of Jane Doe by means of force likely to produce great bodily injury.”
“Now, you can’t use the same act for the same—if you think that the defendant was strangling her and slamming her head into the ground simultaneously, you cannot find him guilty of both count two and count three, and this is maybe a little difficult to wrap your minds around, so I will go a little slow on this.
“If you think that happened simultaneously—he is choking her, and as he’s choking her, he’s also slamming her head into the ground—that is all the same application of physical force then....
“If there is a separation though. If he chokes her and then there is a separation where he then walks away and gets in his car, comes back and slams her head in the ground or he chokes her and then slams her head into the ground after even a brief pause, if there is some sort of separation, then it is okay, then we have two separate acts, but if it is a simultaneous thing where while he’s choking her he’s also simultaneously slamming her head into the ground—you heard an instruction that says you can’t use that same act for both count[] two and count three, and the same thing’s going to apply for counts four and five.”
Nor will we discuss at length the list of Court of Appeal decisions that each party marshals in support of its position. We appreciate the parties’ detailed research. It convinces us that the Court of Appeal decisions are sufficiently numerous and wide-ranging as to provide, collectively, little guidance. That is not surprising, given the challenging nature of this area of law and the need to decide many and perhaps all of the cases cited in light of the elements of different statutes, some of which may differ considerably from the elements of sections 220 and 245. In these circumstances, we think it best to rely mainly on California Supreme Court decisions that bind us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)