Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. GA074190, Steven K. Lubell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Nancy Gaynor, 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, Senior Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
After verbally and physically abusing his female house mate, defendant Jimmy Lee Carroway was convicted by jury of making a criminal threat (Pen. Code, § 422; count 1), the lesser included offense of simple assault (§ 240; count 2, a misdemeanor), dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1); count 3), cutting a utility line (§ 591; count 4, a misdemeanor), and assault with a deadly weapon (§ 245, subd. (a)(1); count 6). On appeal, defendant raises sentencing errors, primarily contending the trial court violated section 654 by failing to stay the sentence on count 2. We agree and affirm the judgment as modified.
All further statutory references are to the Penal Code.
There were other counts charged against defendant involving offenses committed against the house mate and her friend on a different date. The jury either acquitted defendant or was unable to reach a verdict on these additional counts.
FACTUAL AND PROCEDURAL BACKGROUND
Resolution of the section 654 issue depends on the facts underlying his convictions for making a criminal threat and simple assault. Therefore, we summarize the trial evidence solely pertaining to counts 1 and 2.
A. Summary of People’s Evidence
For about six months, defendant had been living with Nia-Sandi Hithe-Ridge (the victim) and her two children in her home in Pasadena. On the afternoon of July 17, 2008, defendant awakened from a nap and entered the victim’s bedroom where she and her children were watching television. Defendant ordered the children out of the bedroom and began yelling at the victim, who was sitting on the bed. Because defendant had assaulted her in the past, the victim became frightened. When defendant stepped out of the bedroom, the victim called 911, and hid the telephone behind her, leaving it off the hook so police would be alerted.
Defendant returned to the bedroom and threatened to throw the victim face-first into the wall, to burn down her house with her and her children inside it and to “have home girls from his hood come and beat [the victim].” The victim believed he would carry out these threats. Defendant pulled the victim by her ankles to the edge of the bed and picked up the children’s bunk bed ladder, which he raised above his head as if to strike the victim with it. Defendant told the victim to not call the police. The victim replied that she already had.
The jury received a transcript and heard a tape recording of the 911 telephone call, in which defendant tells the victim he will “snap” her head in the door, and repeatedly tells her to “shut up” and to “get out of bed” in a profanity-laced tirade. The victim is screaming and crying while repeatedly telling defendant to leave her alone. Finally, defendant tells the victim that he “will kill [her]” if she calls the police; the victim responds that “911 has been on the line.”
Officers arrived, and defendant ran out the back door.
B. Summary of Defense Evidence
Defendant testified in his own defense that he went to the bedroom on the afternoon of July 17, 2008, and noticed the children’s bunk bed ladder was in pieces on the ground. Defendant assumed the children had broken the ladder while playing with it. He and the victim argued. Defendant admitted hitting the victim, but denied brandishing the ladder, claiming he only reached down and picked up the two pieces of the broken ladder. Defendant also admitted that it was his voice on the 911 tape recording and that he had threatened “to snap” the victim’s head in the door. Defendant testified to having been mad at the victim that afternoon because the ladder was broken and the house was not clean. Defendant also denied having assaulted the victim in the past. He had been previously convicted twice of misdemeanor spousal abuse.
C. Sentencing Hearing
At the sentencing hearing, the trial court pronounced an aggregate sentence “of five and a half years,” consisting of the base term of three years (the middle term) on count 6 for assault with a deadly weapon, a consecutive term of eight months (one-third the middle term) on count 1 for making a criminal threat, a concurrent term of six months on count 2 for simple assault, a consecutive term of eight months (one-third the middle term) on count 3 for dissuading a witness from reporting a crime, and a consecutive term of one year on count 4 for cutting a utility line. The trial court also ordered defendant to pay various fines and fees, among them, a $1,000 restitution fine and a $200 parole revocation fine that was imposed and suspended pursuant to section 1202.45.
While the trial court mistakenly referred to this conviction as count 2, it is clear the trial court was sentencing defendant for having violated section 422 as charged in count 1.
The minute order of the August 6, 2009 sentencing hearing and the abstract of judgment both read, “The sentences in counts 1, 2, 3, 4 and 6 are to run consecutively, for a total of 5 years and 6 months to be served in the state prison and/or county jail.”
DISCUSSION
Defendant contends the trial court’s failure to stay the six-month term imposed on count 2 for simple assault contravenes section 654. Specifically, he argues that offense and the offense of making a criminal threat were part of an indivisible course of conduct-“a... criminal display of an ugly bullying temper.” Section 654 prohibits multiple punishment for a “single act or omission, or an indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) “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.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) The People argue, on the other hand, that the prohibition in section 654 does not apply where the defendant held multiple criminal objectives independent of each other. Even if the acts were part of an otherwise indivisible course of conduct, the court may impose punishment for offenses committed in pursuit of each objective. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) According to the People, the evidence established defendant harbored two separate intents: (1) to harm the victim and/or her children by burning down her house or having his friends beat her up; and (2) to assault her with the ladder.
Defendant’s threat to kill the victim should she telephone police supported his conviction for dissuading a witness from reporting a crime as charged in count 3.
A defendant’s criminal intent is determined from all of the circumstances and is primarily a factual matter for the trial court. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) Here, the trial court made no explicit findings during sentencing. However, the imposition of a concurrent sentence for simple assault suggests the court’s implied finding that each offense was a separate act of violence with an independent criminal objective or intent. On appeal, we will sustain the court’s implied factual determination if supported by substantial evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730; People v. Blake (1998) 68 Cal.App.4th 509, 512.)
The only evidence from which one can glean defendant’s intent for these crimes comes from the victim’s testimony and the transcript of the 911 tape recording. Both show that during this single argument, defendant made various threats against the victim, while berating her. He also pulled the victim by her ankles and brandished the ladder at her. Whether it occurred simultaneously with or following his verbal abuse, defendant’s physical abuse of the victim was intended to underscore his anger at her and to drive home the seriousness of his threats of harm. Thus, defendant’s crimes of making a criminal threat and assaulting the victim were incidental to his one objective of bullying her. Because no sufficient evidentiary basis exists under section 654 to support the finding that defendant had multiple criminal intents for counts 1 and 2, the trial court erred by imposing rather than staying its sentence on count 2.
The jury obviously disbelieved defendant’s testimony that he never assaulted the victim with the ladder.
DISPOSITION
The judgment is affirmed as modified. The superior court is directed to correct the minute order and to prepare and to forward to the Department of Corrections and Rehabilitation a corrected abstract of judgment that stays defendant’s concurrent sentence on count 2 for simple assault, reflects defendant’s aggregate sentence as five years four months (three years on count 6, plus eight months on count 1, plus eight months on count 3, plus one year on count 4), indicates defendant’s consecutive term in county jail is to be served upon completion of his term in state prison (see In re Eric J. (1979) 25 Cal.3d 522, 537-538), and shows a $1,000 parole revocation fine imposed and suspended under section 1202.45. (See People v. Smith (2001) 24 Cal.4th 849, 853.)
We concur: PERLUSS, P. J., WOODS, J.