Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-090115-7.
McGuiness, P.J.
Ernesto Carranza-Gutierrez (appellant) appeals from a judgment entered after a jury convicted him of criminal threats (Pen. Code, § 422 , count 1), dissuading a witness from reporting a crime (§ 136.1, subd. (b), count 2), and unlawful possession of a firearm (§ 12021, subd. (a)(1), count 3), and found true the allegation as to counts 1 and 2 that he personally used a firearm (§ 12022, subd. (b)(1)). He contends: (1) the trial court erred in granting the prosecutor’s request to introduce evidence of prior domestic violence; and (2) the sentence under count 2 should have been stayed. We reject the contentions and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise stated.
Factual and Procedural Background
An information was filed on February 6, 2009, charging appellant with: (1) criminal threats against Natalia Gonzales Osuna (§ 422, count 1); (2) dissuading Osuna from reporting a crime (§ 136.1, subd. (b), count 2); and (3) being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 3). The information alleged appellant had been convicted of three prior felonies (§ 1203, subd. (e)(4)) and alleged as to counts 1 and 2 that appellant personally used a firearm (§ 12022.5, subd. (a)(1)).
On June 1, 2009, the day before trial was scheduled to begin, the prosecutor brought a motion in limine seeking to, among other things, admit a prior incident of domestic violence under Evidence Code section 1109. Defense counsel objected on the grounds that the evidence was not necessary to explain “psychological syndromes” because Osuna was “certainly not a woman who seems to be recanting, ” and that there was very little information regarding the prior incident—only “a very brief mention” in audio tapes that were given to counsel “probably... in the middle of [the previous] week.” Counsel asked “at the very least” that a hearing be held under Evidence Code section 402 (section 402 hearing).
At a section 402 hearing held on June 2, 2009, Osuna testified that around Christmas 2008, appellant “was just there with the knife, but he didn’t do anything.” He was holding the knife, possibly for cutting something like a lemon, and did not threaten her or put the knife on her. When asked by the prosecutor why she told the police that appellant pulled a knife on her, she testified that when she returned from work, appellant, who was “very drunk, ” got a knife, turned around, and asked why she had come home so late. He said, as he “always” says, “are you sure you went to work and that you didn’t go somewhere else?” and she responded, “the day that you see me with somebody else, then you should worry.” Appellant stayed in the kitchen with the knife and she went to her bedroom right away because she did not like to argue. She testified she was “scared by the knife” for “[n]ot very long.” She testified appellant is jealous but “is not dangerous to me or does anything, just verbally.” She testified she told the police he did not attack her and did not assault her with the knife. She testified that appellant does not hit her and that he may have acted the way he did because he may have been drinking too much. She testified he is a hard working man and does not mistreat her.
By way of offer of proof, the prosecutor stated a police officer would testify that Osuna told him that around Christmas 2008 appellant was “very drunk and the chairs were all turned over” and that appellant pulled a knife on her after asking, “what kind of time is this to get home?” The trial court granted the prosecutor’s request to present evidence of the incident under Evidence Code sections 1109 and 352, stating, “In terms of the analysis we have obviously the same victim, the two incidents, meaning the charged offense... that relates to domestic violence and the prior incident are close in time. Both involved the use of a weapon to [reinforce] threats made, and there is the apparent use of alcohol that’s involved in both.”
At a jury trial, Refugio Garcia testified he and appellant were friends and had worked together for several years. In January 2009, Garcia was living in appellant’s house with appellant, Osuna, and Osuna’s son. Garcia’s bedroom and appellant’s bedroom were “right next to each other almost.” When Garcia returned from work at about 5 p.m. on January 6, 2009, appellant and appellant’s friend Margarito Saulcido were in the garage drinking beers. Neither of them seemed intoxicated. Osuna was not home because she was taking some furniture to an apartment to which she and appellant were going to be moving. At some point, Osuna and her son came home. At about 9 p.m., Garcia was in his room watching television and Osuna and appellant were in their bedroom when he heard appellant tell Osuna “loudly” he was going to kick her and her son out and that if she did not leave he would kill them both. Garcia testified he was not afraid because appellant sounded like he was drunk, not angry. Garcia heard appellant go outside, then heard about eight gunshots that came in three stages. He thought the gunshots “were in the street” and did not think “it was [appellant].”
Later, the police came to the house and pushed the door to Garcia’s room. Garcia opened the door and saw Osuna standing in front of her bedroom door. The police put a gun to Garcia’s head and asked where the guns were, and Garcia responded, “I have no idea what you are talking about.” Osuna told the police that Garcia had nothing to do with the shots that had been fired. Osuna spoke to the police and appeared “a little” upset and “a little” scared.
Antioch police officer Meghan Miller testified that at approximately 9:45 p.m. on January 6, 2009, she received a domestic violence dispatch call regarding an argument that had turned physical and involved a gun. Miller and other officers went to the house and were outside when the garage opened and two men came outside. The officers shouted commands, including an instruction to the men to show their hands. The first man, Saulcido, walked outside, seemed surprised, and sat on the curb. The second man, who Miller identified in court as appellant, came out of the garage approximately 20 seconds later. Appellant was “kind of surprised” and continuously asked, “ ‘Hey, what’s going on, ’ there is no problem, that type of thing.” Both men appeared intoxicated, smelled of alcohol, were not steady on their feet, and had red, glazed eyes.
Miller testified that she asked, “Where’s the gun?” in English and “Are you armed?” in Spanish. Appellant either gestured with a shoulder or his hand or said, “It’s inside, ” or “it’s in there.” Both men were detained and another man inside the house was detained. Miller was not sure whether the woman (Osuna) was already in the house or whether she returned to the scene at a later time. She was interviewed by other officers and was “really upset, ” “pensive, ” and looked like she had been crying. Miller searched the garage for the gun and found 12-pack and 24-pack containers of beer and an unloaded.9 millimeter gun behind a workbench. The gun had a magazine that could hold 11 bullets, or definitely more than eight. When Miller showed the gun to Osuna, she said, “That’s it.” Miller testified there was no reason to search for expended shell casings because there had been no reports that a gun had been fired.
Osuna testified appellant has been her partner for more than three years and that she calls him her husband even though they are not married. She testified that appellant drinks one or two beers a day and gets drunk on the weekends. She could tell when he was drunk because “he [wa]s very different.” He was jealous and sometimes controlling and would “bug[]” her about what time she got off work by saying, “I don’t think that you just got out of work. Somebody told me that they saw you around.” Osuna testified that she “sometimes” drinks but has just one or two small glasses and falls asleep. She testified she still loves appellant and would let him come home if he was released from jail. She visited appellant in jail twice a week and did not want to press charges against him. She was nervous and uncomfortable in court, did not want to testify, and wanted “all of this to be over with.”
Osuna testified she has four children from a prior relationship and that her oldest, Juan Mendez, was born in 1969. She moved in with appellant after dating him for about one year, and she and appellant moved from an apartment to a house in October 2007. They lived in the house with Mendez and Garcia, a calm and respectful man who she had seen drink alcohol on only one occasion. In January 2009, Osuna and appellant were in the process of moving from the house to an apartment together. On January 6, 2009, appellant left the house in the morning to go to work. Osuna was employed but did not go to work that day and was moving things from the house to the apartment. Mendez, who was moving to the apartment with Osuna and appellant, was helping her. At some point in the day, Osuna called appellant to ask him what he wanted for dinner. It was Three Kings Day, which was a particularly special holiday for Osuna because when Mendez, who “had problems with drugs and things, ” was about to be deported, Osuna prayed he would return to her on Three Kings Day, and shortly after she prayed, she received a call from an immigration agent who told her she could “have [Mendez] back.”
When Osuna returned home on January 6, she prepared dinner for appellant, and appellant came home from work sometime between 5 p.m. and 6 p.m. Osuna asked him if he wanted to eat, and he responded, “Not right now, ” and went to the garage to have some beers with Saulcido. Appellant was “fine” when he returned from work and they “didn’t fight or anything.” Later, she went to the garage and said to appellant, “My soap opera is about to start, ” “do you want to eat right now or not?” She told him he and Saulcido should eat because they were drinking too much. She knew, however, that appellant does not like to eat “once he gets to drinking.” She returned to her room, got ready for bed, laid down in her bed and began watching soap operas.
At about 8:10 p.m., while she was watching one of her favorite soap operas, appellant, who had already come by twice to ask her what she was doing, came by a third time and asked her what she was doing. He was more intoxicated each time he came by, and he was “aggressive.” The third time, she said to him, “Can’t you see what I’m doing? I’m lying down here watching my soaps.” Appellant went into the bathroom, and when he came out, he approached Osuna. He had been drinking “a lot” by then and said, “Do you know what I’m carrying here?” She responded, “Well, no, I don’t know what you are carrying there, but move aside because I’m watching my soap.” Appellant pulled up his shirt and “pulled a gun, ” “showed [the gun], ” and said, “This is for you.” He pointed the gun at Osuna’s forehead and the gun was about two inches away from her. As he held the gun, he asked why she was late in coming home the previous day. Osuna “got scared and... got up really quickly, ” pushed him and said, “Get away from here because I’m gonna call the police.” Appellant told her to get out of the house and to take her son with her, and also said he was going to kill her if she called the police. Osuna left and thought about going to their new apartment, but appellant told her he did not want her there and that he would “kick [her] out of there also.” Appellant had previously accused Osuna of being with another man and had told her he “ha[d] to protect or watch over what is [his], ” “[i]n other words me, ” but she had never seen him with a gun and he had never pulled a gun on her before. Later, the police found the gun in the garage, and an officer showed it to Osuna and asked, “Is this the gun.” Osuna said, “Yes, that’s it.” Osuna was not able to identify the gun at trial, but the prosecutor introduced evidence that she had previously identified the gun at the preliminary hearing.
Osuna further testified that Mendez was not at the house when this incident occurred because he was still moving things between the house and the apartment after she told him to “do a trip [him]self and arrange things in the apartment.” Mendez returned to the house as Osuna was leaving, so she took him with her and dropped him off at a hotel. She told Mendez to stay at the hotel because appellant was drunk and she did not want Mendez to be there when appellant “would be insulting” her. She did not tell Mendez “what happened with the gun” because she was afraid Mendez would have a “very angry reaction” and try to defend her. After dropping Mendez off at the hotel, Osuna called 911. While she was on hold, Mendez’s wife Carmen Alvarez called asking whether Osuna was going to go to work the next day. Osuna told Alvarez what happened and asked her to call the police because Alvarez speaks and understands English well and Osuna does not. Alvarez called the police and called Osuna back to tell her the police were going to call her. When the police called, Osuna told them what happened. A recording of the phone call was played for the jury. Sometime between 9 p.m. and 10 p.m., she returned to the house as instructed by the police, and saw the police at her house with appellant and Saulcido sitting on the sidewalk. Osuna testified she did not recall testifying at the preliminary hearing that appellant asked her to say he had not pointed a gun at her.
Osuna further testified about a prior incident that occurred around Christmas 2008 in which appellant held a knife in his hand as he asked her why she had come home “at that hour.” Osuna was afraid but when she saw that “he had this lime on there, ” she thought, “oh, well, I guess he’s just going to cut up the limes.” She then left and went to their bedroom. Osuna did not call the police because he “didn’t do anything to [her].”
Carmen Alvarez testified she was in a relationship with Mendez and they had a child together. Alvarez knew Osuna through her mother and spoke to Osuna approximately every other day. Alvarez was living in San Jose at the time and spent the weekends with Mendez at Osuna and appellant’s home. On January 6, 2009, when she called Osuna to ask if she was going to work the next day, Osuna was crying, sounded “hysterical” and “scared, ” and said she was trying to call 911 because appellant had put a gun to her. Osuna said she was not able to reach anyone at 911 and asked Alvarez to call for her. Alvarez called 911, spoke to someone for a few minutes, then called Osuna back to let her know “they were going to call her.”
Before appellant took the stand, the parties stipulated that on August 23, 2000, appellant was convicted of the following felonies he committed on March 18, 2000: (1) driving under the influence causing injuries with two prior convictions; (2) driving with.08 percent blood alcohol causing injury with two prior convictions; (3) driving under the influence with felony driving under the influence prior convictions; (4) driving with.08 percent or higher blood alcohol with felony driving under the influence driving convictions; and (5) leaving the scene of injury accident. Appellant testified he was living with Osuna, Mendez and Garcia in January 2009. He had owned a landscaping business for about 15 years, had two employees, Saulcido and Garcia, and paid taxes every year. Mendez had also worked for him but only for one or two days because appellant did not want a “drug addict” working for him.
Appellant testified that after he returned home from work at about 4 p.m. on January 6, 2009, he drank and played cards in the garage with Saulcido, Garcia and Mendez. While they were playing cards, appellant and Mendez got into an argument and Mendez, who “loses his marbles when he’s drinking, ” grabbed a chain saw and tried to attack appellant with it. Saulcido said, “Don’t do anything to him, ” and grabbed Mendez’s hand, and the chain saw fell to the ground. Mendez did not try to grab the chain saw again and left the garage. Appellant did not think Mendez was going to “gossip” to tell Osuna “that [they] had been arguing, ” but he apparently did, as Osuna came to the garage and said, “What kind of problem do you have with my son, Juan? I’m going to call the police right now on you.” Appellant and Osuna argued for a while and he told Osuna he did not want Mendez in the house because he does not want to support a 34-year-old man and his girlfriend and the girlfriend’s children. Osuna and Mendez left the house, then “threw the police at [appellant].” Appellant testified he resisted when the police tried to draw his blood because he did not know why they would need to test him if he was not driving. He stated he believed a mother would do anything for her son, even lie. Appellant testified he did not threaten Osuna with a knife around Christmas 2008, did not point a gun at her on January 6, 2009, and had never laid a hand on her. He testified there was a gun in the garage because his friend, Adolfo Fernandez, who had a gun and was concerned there would be “a lot of check points” on New Year’s Eve, had left it at appellant’s house. Appellant told Fernandez he would let him leave the gun there if he took out the bullets.
Appellant further testified that during the three years he and Osuna lived together, he did not “constantly” say things to Osuna about her seeing other men. Sometimes, when she was coming home at about 1 a.m. on a regular basis, he would ask her why she was coming home so late and would say, “as if [he] were kidding, ‘Wouldn’t it be that perhaps you have another man....’ ” He would also ask why she was so late because she was supposed to prepare lunch for him in the morning but would not get up in the morning when she got home late. He and Osuna did argue about Mendez because Mendez would come home at 2 or 3 a.m., drink, and make a lot of noise. He told Osuna he did not want to support Mendez forever, that Mendez was too old to be “playing that way” and not working, and that she was treating Mendez “like a little baby.” Appellant would also tell Mendez he needed to find a job.
Danielle Roberts, a criminalist with the Contra Costa County Office of the Sheriff, who specializes in alcohol and impairment, testified regarding the process by which alcohol is distributed through the body and how it affects the body. She testified that memory and judgment can be impaired and that people can become jealous or dangerous. She testified that the legal limit for blood alcohol for driving in California is 0.08 percent, and that the blood collected from appellant on January 6, 2009, showed a blood alcohol content 0.21 percent. She testified that a 0.21 percent blood alcohol level meant that someone of appellant’s weight would have had to have 10 drinks, plus or minus one drink. She also estimated that appellant’s blood alcohol level would have been approximately 0.24 percent two hours before his blood was drawn, which meant he would have had 11.4 drinks, plus or minus one drink.
The jury convicted appellant of all counts and found true the firearm enhancement. The court sentenced him to eight years and eight months in state prison.
Discussion
1. Evidence of Knife Incident
Evidence Code section 1109, subdivision (a)(1), provides that “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” Appellant contends the trial court erred in admitting evidence of the knife incident that occurred around Christmas 2008 because (a) the incident did not constitute “domestic violence”; (b) the prosecutor’s request was untimely; and (c) the prejudice of admitting the evidence outweighed its probative value. We reject the contention.
Appellant also contends the trial court violated his federal constitutional rights by admitting the evidence and instructing the jury that it “only had to find by a preponderance of the evidence that appellant committed the prior domestic violence, under CALCRIM 852.” Appellant acknowledges that California cases including People v. Falsetta (1999) 21 Cal.4th 903, 917, 919, and People v. Hoover (2000) 77 Cal.App.4th 1021, 1025-1030, have rejected due process challenges to the introduction of propensity evidence and states he is raising the issue in this court merely “to preserve his right to federal review.” (See also People v. Carpenter (1997) 15 Cal.4th 312, 382 [jury may consider propensity evidence if it is persuaded by a preponderance of the evidence that the defendant committed the uncharged offense], superseded by statute on other grounds as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096.) Thus, we will not address this issue in our opinion.
a. “Domestic violence”
“ ‘Domestic violence’ means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.” (§ 13700, subd. (b).) “Abuse” is defined as “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” (§ 13700, subd. (a); Evid. Code, § 1109, subd. (d)). To obtain admission of evidence of prior acts, it is not necessary for the prosecution to prove beyond a reasonable doubt that the uncharged offense occurred; rather, the jury may consider the evidence if it is persuaded by a preponderance of the evidence that the defendant committed the uncharged offense. (People v. Carpenter, supra, 15 Cal.4th at p. 382.) To determine admissibility, the trial court makes a preliminary determination of whether the proffered evidence is sufficient for a jury to find the uncharged offense true by a preponderance of the evidence. (People v. Simon (1986) 184 Cal.App.3d 125, 132-134.) We review the trial court’s determination under the abuse of discretion standard. (People v. Lucas (1995) 12 Cal.4th 415, 466.)
Osuna’s testimony at the section 402 hearing established that when she returned from work one evening around Christmas 2008, appellant, who was a jealous man and was “very drunk, ” got a large knife, turned around, and held it as he asked her why she had come home so late. Osuna testified appellant may have been holding the knife to cut a lemon or a lime but acknowledged she was “scared, ” though “[n]ot [for] very long, ” and that she moved away “right away” to avoid an argument. Further, the prosecutor presented additional evidence that Osuna told a police officer that appellant “pulled a knife on” her after asking, “what kind of time is this to get home?” and was “very drunk and the chairs were all turned over.” In light of this evidence, the trial court did not abuse its discretion in finding appellant committed “domestic violence” by “intentionally or recklessly” placing Osuna in “reasonable apprehension” that he was going to harm her. (See § 13700, subd. (a).)
b. Timeliness of request
“In an action in which evidence is to be offered under [Evidence Code section 1109], the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, in compliance with the provisions of Section 1054.7 of the Penal Code.” (Evid. Code § 1109, subd. (b).) Section 1054.7 requires that disclosure be made “at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately.” (§ 1054.7.) The purpose of this requirement is that a defendant will not be surprised or unprepared to rebut the proposed evidence. (People v. Brown (2000) 77 Cal.App.4th 1324, 1334.)
Defense counsel did not raise an objection below that the prosecutor’s disclosure was untimely, and therefore appellant has forfeited this claim on appeal. In any event, the record does not show the disclosure was untimely. Defense counsel stated, “Ms. Wharton [the prosecutor] and I were finally able very recently to get copies of the audio tapes of two interviews with [Osuna], and within, I believe only one of those audio tapes there is a very brief mention [of the knife incident].” She added she had received the tapes in the middle of the prior week, i.e., the week before the trial. These statements indicate the prosecutor and defense counsel learned of the knife incident at about the same time—in the middle of the week prior to trial—and there is nothing in the record to indicate the prosecutor did not disclose the information immediately. Thus, appellant has not shown a violation of section 1054.7.
Moreover, even if the disclosure was untimely, the trial court has broad discretion in determining among a wide range of sanctions, including immediate disclosure, contempt proceedings, and delaying the testimony of a witness. (§ 1054.5, subd. (b); see also People v. Hammond (1994) 22 Cal.App.4th 1611, 1624.) “[A]bsent a showing of significant prejudice and willful conduct, exclusion of testimony is not appropriate as punishment.” (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1747, 1757, 1758 [“showing of significant prejudice and of willful conduct” “motivated by a desire to obtain a tactical advantage” at trial required]; People v. Hammond, supra, 22 Cal.App.4th at p. 1624 [“Subdivision (c) of section 1054 expressly provides that ‘[t]he court may prohibit the testimony of a witness... only if all other sanctions have been exhausted’ ”].) Excluding the testimony is disfavored because it generally undermines the reliability of the truth-determining function of the trial process. (People v. Gonzales, supra, 22 Cal.App.4th at pp. 1757-1758.) A trial court’s ruling on discovery matters, including the type of sanction it imposes, is reviewed for an abuse of discretion. (People v. Lamb (2006) 136 Cal.App.4th 575, 581; People v. Ayala (2000) 23 Cal.4th 225, 299.)
Here, the trial court held a section 402 hearing at which the parties had the opportunity to obtain more information about the knife incident. Osuna testified at the hearing and the prosecutor proffered evidence regarding Osuna’s prior statements to police. Defense counsel acknowledged the prosecutor had “relayed all of the details that were given in this prior statement” and did not request additional information or a continuance to conduct further discovery. Thus, even if the prosecutor’s disclosure was untimely, the trial court reasonably determined that holding a section 402 hearing was an appropriate way to address defense counsel’s concern that “there [wa]sn’t a lot of detail” about the incident. There was no abuse of discretion.
c. Evidence Code section 352
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” The process of weighing the factors depends on the trial court’s consideration of the facts and issues of each case. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) We will not disturb a trial court’s determination under section 352 “ ‘unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value.’ ” (Id. at pp. 1314-1315, quoting People v. Brown (1993) 17 Cal.App.4th 1389, 1396.) “[W]hen ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under... section 352.” (People v. Williams (1997) 16 Cal.4th 153, 213.)
Here, the knife incident was probative to show that appellant had a pattern of abuse in which he would get jealous and/or controlling when drunk and threaten Osuna with a weapon for coming home late. As the trial court stated, Osuna was the victim in both incidents, the incidents were close in time (just two weeks apart), both incidents involved the use of a weapon to reinforce threats after Osuna returned home late from work, and appellant was drunk both times.
Further, admitting the evidence did not “necessitate undue consumption of time” or “create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) The evidence posed no danger of confusing the issues or misleading the jury as it was clear each incident occurred on a different date and involved a different weapon, and the trial court properly instructed the jury as to the different standards of proof required for the jury to consider evidence of the knife incident (preponderance of the evidence) and to convict appellant of the charged offenses (beyond a reasonable doubt). There was also no “substantial danger of undue prejudice, ” as the knife incident was not more egregious than the charged offenses and did not contain any inflammatory facts that would provoke an emotional bias against appellant. (See People v. Wright (1985) 39 Cal.3d 576, 585 [the prejudice referred to in Evidence Code section 352 applies to evidence that “uniquely tends to evoke an emotional bias” against the party].) Appellant asserts the evidence “could only tend to invoke an emotional bias against defendant as an individual who abused alcohol.” There was, however, other evidence presented throughout the trial that appellant abused alcohol. Osuna testified that appellant gets “drunk” on the weekends and is jealous and sometimes controlling when he drinks. The parties stipulated appellant had five prior felony convictions, most of which involved the use of alcohol, including driving under the influence. Evidence of the knife incident was therefore not likely to “uniquely” evoke an emotional bias against appellant “as a frequent abuser of alcohol.” The evidence was properly admitted under Evidence Code section 352.
Sentence
Appellant contends the sentence on count 2 (dissuading a witness from reporting a crime) should have been stayed because it was part of the same course of conduct as count 1 (criminal threat). We disagree.
Section 654, subdivision (a), provides: “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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” “ ‘Whether a [defendant’s] course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the [defendant]. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.]” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) “On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.” (People v. Perez (1979) 23 Cal.3d 545, 551, fn. omitted.) “Because of the many differing circumstances wherein criminal conduct involving multiple violations may be deemed to arise out of an ‘act or omission, ’ there can be no universal construction which directs the proper application of section 654 in every instance, ” and each case must be determined upon its own facts. (People v. Beamon (1973) 8 Cal.3d 625, 636.)
Here, the trial court sentenced appellant to prison for a low 16-month term for making a criminal threat, a consecutive low 16-month term for dissuading a witness, plus a low three-year term for each of the two firearm enhancements, and a concurrent term of 24 months for being a felon in possession of a firearm with multiple prior felony convictions, for a total sentence of eight years eight months. The record supports the trial court’s decision to sentence appellant on both the criminal threat offense and the dissuading a witness to report a crime offense. Osuna’s testimony shows appellant was jealous and controlling when he drank. He had previously accused Osuna of being with another man and had told her he “has to just watch over what is his, ” which included Osuna. According to Osuna, appellant came out of the bathroom on the evening of January 6, 2009, pointed a gun at her about two inches from her forehead, and said, “this is for you.” Osuna became afraid, got up from the bed, and told appellant she was going to call the police and appellant said he would kill her if she called the police. Appellant’s response substantially supports the court’s implied determination that the second threat to kill Osuna was not out of jealousy or to protect what was his, but rather to prevent Osuna, a victim of a crime, from reporting the crime to the police. Thus, even though the events occurred close in time, appellant’s act of preventing Osuna from calling the police so that he would not be arrested and prosecuted demonstrated a separate intent and objective from the initial criminal threat that was based on jealousy.
Appellant asserts the sentence on count 2 should nevertheless have been stayed because the jury could have convicted appellant of both counts 1 and 2 based on one conduct, i.e., appellant’s “specific threat to ‘kill’ Osuna.” He points out that in closing, the prosecutor argued that appellant’s act of pointing a gun at Osuna and his “specific threat to ‘kill’ Osuna” were two different threats that could support a conviction under count 1. What the prosecutor said, however, was that appellant’s threat to kill Osuna if she did not leave the house–not his threat to kill her if she called the police—could support the criminal threat conviction. The prosecutor’s argument was supported by the evidence, as Garcia had testified he heard appellant threaten to kill Osuna and Mendez if they did not leave the house. The jury would not have convicted appellant of both counts 1 and 2 based on the same threat, and the trial court properly imposed a consecutive sentence.
Appellant argues that because the trial court erred in sentencing him on both counts 1 and 2, it also erred in not staying imposition of the gun enhancement under count 2. We reject this argument in light of our conclusion the court did not err in sentencing him on both counts.
Disposition
The judgment is affirmed.
We concur: Pollak, J., Jenkins, J.