Opinion
H044361
12-28-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID JASON CASTANEDA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1634983)
I. INTRODUCTION
Defendant David Jason Castaneda was sentenced to eight years in prison after a jury found him guilty of kidnapping (Pen. Code, § 207, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), attempting to dissuade a witness (§ 136.1, subd. (b)(2)), and battery upon a former dating partner (§ 243, subd. (e)). The charges arose from a violent encounter with a former girlfriend in which defendant rammed her car and then compelled her to accompany him several blocks to his parents' house. On appeal, defendant contends that his sentences for aggravated assault and misdemeanor battery should have been stayed pursuant to section 654 because they were incidental to the kidnapping. We hold that the appeal is moot as to the battery and that the record contains substantial evidence that the assault was motivated by an objective distinct from the accomplishment of the kidnapping. Accordingly, we will affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant had an intimate relationship with R.P., the victim, for about three and a half to four years, ending in early January 2016. About a month after the breakup, R.P. began dating a person who was also a friend of defendant's. Defendant made several attempts to contact R.P. to persuade her to return to him, but as she told a police officer, she "stood firm on [her] decision." This caused defendant to grow "a little pesky" and "more . . . aggressive." In addition to perhaps 10 other contacts, on the day before the incident at issue he drove past R.P.'s mother's house while R.P. was there.
On the afternoon of March 28, 2016, R.P. was driving her new boyfriend's car on King Road when she noticed defendant following her in his mother's car. He followed her onto northbound Highway 101, where he placed his car immediately to her left, preventing her from merging into a through lane, and forcing her to remain in a lane that would exit the freeway at Tully Road. Defendant was yelling at her to pull over, but she refused. Defendant began "veering into [her] as if he was going to . . . crash into [her]." R.P. exited the freeway and headed eastbound on Tully. Defendant continued to block any movement leftward, which forced her into a right turn on Alvin Avenue, where a Denny's restaurant was located. Throughout this time defendant remained on her immediate left, yelling at her and telling her to pull over. R.P. began to turn into the Denny's parking lot, and defendant followed. As she performed this maneuver, defendant drove his car into the front quarter-panel of the car she was driving. She stopped her car in the parking lot and he stopped partly behind her. He walked over, opened the door of her car, and told her—according to her report at the time—to: "[G]et the fuck out of that car. That's not your car." He also said, "Get into my car," "You're coming with me," and "You ain't going back." He tried to grab her keys, and they wrestled over them with his body halfway into her car. According to R.P.'s statement, he was also "socking" the windows of her car. She eventually complied with his commands because, she said, "[I]f I had kept on, the more I waited, the more he would of damaged the vehicle." She described herself as crying, shaking, upset and scared.
R.P. got into defendant's car, or was placed there by defendant, who then drove them to his parents' house a few blocks away. They continued to have a "heated argument," which R.P. characterized as "yelling." Defendant asked or told her to come into the house, but she refused. At some point defendant came to the passenger side of the car. At about that time, police arrived, and defendant went into the house. The police elected not to pursue him there because R.P. reported that defendant's parents were elderly, and one of the parents told officers that the other was "not ambulatory . . . . So the officers on scene . . . were not going to go in and risk harming her health . . . ."
The police had been dispatched to the location due to 911 calls from two witnesses who testified at trial. According to transcripts of the calls, which were in evidence, one of the callers reported someone "beating up a woman." She said there was "a man that is beating up a woman inside a car real hard." She testified at trial that after defendant had hit the woman five or six times, he went back to his car, but then "returned and hit her again." She also described the man as having "put" or "pulled" the woman into his car. "[H]e beat her with his fist and put her in his car and took her."
The caller testified at trial that defendant "grabbed [R.P.] by her hand and placed her in his vehicle." R.P. denied this; in her original statement to police she said that defendant was "damag[ing] the car" by hitting the window and that "finally [she] complied with what he said in order to . . . stop the damage from [sic] the car." R.P. added, "[I]f I had kept on, the more I waited, the more he would of damaged the vehicle." At trial R.P. testified that she "agreed . . . to go with" defendant and got into his car "because I didn't want him damaging the vehicle" any further.
The other caller described a scene she had just witnessed while driving her own car near the Denny's: "[I]t looked like there was a pretty aggressive altercation between a man and woman while they were driving and then they pulled over right at the corner, which I think is like a Denny's and he had cut her off and the last thing I saw was he got out of her [sic] car to approach her." When the caller saw them "they were both in their cars and they were driving and yelling . . . and he kept cutting her car off so she couldn't drive anywhere."
Defendant was initially charged with kidnapping and other offenses arising from the above events. While in jail, he made a number of phone calls to R.P. and others alluding to the possibility that R.P. could, by testifying favorably or perhaps refusing to testify, cause the charges against him to be dropped. Ultimately he was charged with kidnapping (§ 207, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), attempting to dissuade a witness (§ 136.1, subd. (b)(2)), and battery on a former dating partner (§§ 242, 243, subd. (e)). The jury found him guilty on all counts. The trial court sentenced him to an aggregate term of eight years, consisting of five years for kidnapping and consecutive sentences of one and two years, respectively, for assault and dissuading a witness. For the battery conviction, the trial court imposed a sentence of six months which was "deemed served." Defendant filed a timely notice of appeal.
III. DISCUSSION
A. Introduction
Section 654, subdivision (a) 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." When a defendant is convicted of multiple offenses arising from the same act or omission, " '[e]xecution of the sentence for one of the offenses must be stayed.' [Citations.]" (People v. Mesa (2012) 54 Cal.4th 191, 195.) The statute applies not only to a single physical act but to "an indivisible course of conduct." (People v. Le (2006) 136 Cal.App.4th 925, 931 (Le).) "It is the defendant's intent and objective that determines whether the course of conduct is indivisible. [Citation.] Thus, ' "[i]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once." ' [Citations.]" (Ibid.) On the other hand, "[w]here a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he may be punished for more than one crime even though the violations share common acts or are parts of an otherwise indivisible course of conduct." (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
An objection under section 654, subdivision (a) may be raised on appeal even if, as here, the defendant did not raise it in the trial court. (Le, supra, 136 Cal.App.4th at p. 931.) This is because the trial court " 'acts in "excess of its jurisdiction" and imposes an "unauthorized" sentence when it erroneously stays or fails to stay execution of a sentence under section 654,' " such that "a claim of error under section 654 is nonwaivable." (Ibid., quoting People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
The statute's applicability presents "a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).) If the court imposes multiple terms without expressly ruling on the presence of separate criminal objectives, "a finding that defendant's crimes were divisible inheres in the judgment" and must be sustained on appeal if supported by substantial evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638; see People v. Osband (1996) 13 Cal.4th 622, 730-731; Jones, supra, at p. 1143.) In addressing this question, "[w]e review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (Jones, supra, at p. 1143.)
B. Battery Conviction: Mootness
Respondent contends that defendant's argument is moot as it applies to the battery conviction because the sentence for that conviction was deemed served, with the result that no effective relief can be granted. Ordinarily, " ' "[w]hen no effective relief can be granted, an appeal is moot and will be dismissed." [Citations.]' " (People v. Travis (2006) 139 Cal.App.4th 1271, 1280.) Respondent notes that staying the sentence on that conviction would not affect defendant's pre-sentence confinement credits because the court awarded him credit for the entire time he was in jail. Defendant concedes the point in his reply brief. Accordingly, only the status of the assault conviction remains to be decided.
C. Assault Conviction: Divisibility
The record contains substantial evidence that the assault had a separate motive and purpose from the kidnapping. As explained by the prosecutor in her argument to the jury, the assault charge was predicated on defendant's use of his car to ram the car R.P. was driving. The evidence amply supports an inference that by the time this occurred defendant had already succeeded in forcing R.P. to submit to defendant's demands that she pull over. In that regard, the violence defendant inflicted could be found entirely extrinsic to the kidnapping. Indeed, a factfinder could reasonably infer from this record that the intent to kidnap R.P. was not formed until after she had stopped in a public area, where their interaction could be (and was) observed by others. One of the 911 callers testified that after defendant had hit R.P. five or six times, he went back to his car, but then returned to R.P.'s car and "hit her again." Defendant may have only decided it was necessary to go elsewhere when R.P. continued to refuse his demands to get out of her car and engage in a conversation with him. (See People v. Brents (2012) 53 Cal.4th 599, 618 [finding substantial evidence that intent to kill victim was not formed until after initial assault].)
Even if defendant intended from the beginning to kidnap R.P., his conduct in actually hitting her car—when he appeared to have succeeded in forcing her to pull over—could be found to have distinct motives and purposes, i.e., to punish her for leaving him, being with another man, and driving the other man's car, as well as for not complying more readily with defendant's demands. R.P. testified that when defendant first approached her in the Denny's parking lot he was "upset [at] the fact [she] was driving another man's car," and "at the fact [she] was going out with this person" who was "actually a friend of his." Defendant told R.P., "[T]hat's not your car." Defendant also told R.P. "he wanted [her] home and [she had] no business driving that car." Defendant was "socking the window" of the car, hitting the door, or both, as well as grabbing and shaking the door "like . . . he was trying to rip it off." R.P. felt he was "damaging the door."
Testimony of the most percipient 911 caller also supported an inference that in addition to his desire to force R.P. to accompany him, defendant was motivated by the desire to vent his rage at her. That witness testified that she heard defendant demanding that R.P. "[s]top [her] car immediately," and that he was shouting obscenities like "motherfucker" and "[b]itch." After the two cars stopped, defendant "opened her car's door and he started hitting her with a closed fist many times." Defendant seemed to the witness like "somebody that is high on drugs, like, out of control, out of his mind." The witness described R.P. as "covering herself and over her hair as he was hitting her with a closed fist." This testimony supports an inference that defendant's violence against R.P. was driven by a punitive or vindictive motive and not by any intent to coerce her into accompanying him.
R.P. was not asked at the scene whether defendant had been striking her at the Denny's parking lot. At trial she denied that he had. In argument to the jury, the prosecutor explained that denial was part of an effort by R.P. to "minimize" defendant's conduct. The jury heard expert testimony to the effect that this is common behavior among victims of domestic violence.
Defendant correctly points out that the prosecutor's theory of the case, as argued to the jury, explicitly portrayed the assault as incidental to the kidnapping. However a prosecutor's interpretation of evidence is not binding on a jury, and we see no reason to conclude that it is binding on us. (See People v. Perez (1992) 2 Cal.4th 1117, 1126 ["the prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury"].) Rather the question before us is whether the record contains substantial evidence to support an inference that the assault was motivated by a purpose distinct from that of the kidnapping. The prosecutor's argument to the jury does not affect this question.
The prosecutor made this point three times: (1) "Next, I'm going to talk about the kidnapping charge, but I want to talk about first the interplay with the assault with a deadly weapon with the kidnapping because it's very interesting. The car that was used in the assault with a deadly weapon, it was used by the defendant for a specific purpose, to accomplish his end goal which was to kidnap the victim. Now, the car in this situation is no different than if someone who is kidnapping someone else used a knife or used a gun. The purpose of that weapon is to instill fear in the victim so that they know they have to comply with the demands of the person, here, being the defendant"; (2) "[T]he motive for him using his car as a deadly weapon is to instill fear and make the victim go with him"; (3) "His motive behind the [section] 245 [assault] is to accomplish the kidnapping." --------
IV. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.