Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Ct. No. 10CF0847 Dan McNerney, Judge.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
O’LEARY, J.
Rudy Castellon appeals from his convictions on multiple felony and misdemeanor counts that include kidnapping, stalking, and violation of a restraining order, all arising out of ongoing domestic violence against his girlfriend. The trial court sentenced him to a total aggregate prison term of 25 years. On appeal he raises sentencing errors with which we agree, but none of which affect his total prison term. Nonetheless, they must be corrected. We affirm the judgment as modified.
FACTS
Prior Stalking Convictions & Restraining Order
In September 2006, Castellon pleaded guilty to two misdemeanor counts of domestic violence battery against his girlfriend, Christina Ortega (Christina), in violation of Penal Code section 243, subdivision (e)(1). (Orange County Super. Ct. case No. 06CM09265.) He was placed on probation.
All further statutory references are to the Penal Code.
In October 2006, Castellon pleaded guilty to felony counts of first degree burglary (§§ 459, 460), stalking with a restraining order (§ 646.9, subd. (b)), and contempt of a domestic violence restraining order (§ 166, subd. (c)(4)). (Orange County Super. Ct. case No. 06CF3130.) He was granted probation and ordered to have no contact with Christina. Castellon subsequently violated the terms of probation in 2007, and was sentenced to a total prison term of two years.
In May 2007, Castellon again pleaded guilty to contempt of a domestic violence restraining order (§ 166, subd. (c)(4)). (Orange County Super. Ct. case No. 07WF0928.) He was granted probation and again ordered to have no contact with Christina.
Current Offenses
November 26, 2009, Incident
In November 2009, Castellon, Christina, and their 4-year-old son were staying with her family, including her father Rolando Ortega (Rolando) and her mother Vincenta Ortega (Vincenta) in the Ortega family residence in Santa Ana. On November 26, 2009, Rolando heard Castellon and Christina arguing in the bedroom. He went in and saw Christina crying and Castellon was cutting up her clothes with scissors. Rolando told Castellon to stop and said he was calling the police. Castellon picked up his son, threw him out the window, jumped out after him, and ran off with the child.
December 2009 Incident
Sometime in December 2009, at Christina’s request, Rolando went to retrieve Christina and her child from a residence in Garden Grove where they were staying with Castellon. After Christina and the child got in Rolando’s car, Castellon got in the car. Castellon and Christina were arguing as Rolando drove. Castellon said, “‘We’re all going to die, ’” and pushed his foot against the accelerator pedal. Rolando told Castellon to calm down, which he did. Rolando parked the car. Castellon and Christina got out and walked away together. On another unspecified date in December, Rolando was driving with Christina and saw Castellon in front of the Ortega residence. Castellon wanted Christina to leave with him, but she would not.
December 21, 2009, Incident
On December 21, 2009, Rolando and Christina were driving home from court after Christina had requested a restraining order against Castellon. Rolando saw Castellon coming out of the house, and he appeared very angry. Christina told her father to not stop the car, so he drove away while Christina called the police on her cellular telephone. They then received text messages from Castellon saying, “‘I am following you.’”
February 21, 2010, Incident
On February 21, 2010, Christina and Vincenta were at home when Castellon arrived carrying a bag of sugar. Christina yelled at Castellon to not put sugar in the gas tank of the truck parked in the garage. When Vincenta tried to pull Castellon away from the truck, he pushed her, poured the sugar into the truck’s gas tank, and ran away.
April 5, 2010, Incident
Vincenta testified that on April 5, 2010, Castellon arrived at the Ortega residence and demanded to talk to Christina. Christina, who was pregnant, had just arrived at the home a short time earlier and was scared. When Vincenta told Castellon that Christina was not home, he began hitting the door and pulled up his shirt exposing a gun tucked in his waistband. Christina decided to leave with Castellon to avoid “a tragedy” at the house. Once Christina was outside, Castellon grabbed her by her hair, hit her in her head several times and pulled her along as she screamed for help. Vincenta threw a small plant at Castellon striking him in the back. Castellon threw the plant back at Vincenta.
Christina testified at trial she could not remember much of what occurred because she had been using drugs on April 5. She denied Castellon grabbed or hit her. Police officers who interviewed Christina on April 5, and again on April 17, testified she did not appear to be under the influence on April 5 and her interview statements were consistent with Vincenta’s recollection of the events.
April 29, 2010, Arrest
On April 29, 2010, police arrested Castellon at his Garden Grove residence. They found a loaded 9-millimeter semi-automatic handgun wrapped in a cloth in a metal shed in the backyard.
PROCEDURE
The amended information filed September 2, 2010, charged Castellon with the following felonies arising out of the April 5, 2010, incident: kidnapping (§ 207) (count 1); residential burglary (§§ 459, 460) (count 2); domestic battery causing injury with a prior conviction for violence (case No. 06CM09265) (§ 273.5, subds. (a) & (e)(1)) (count 3); and violation of a protective order with a prior (case No. 07WF0928) (§ 166, subd. (c)(4)) (count 4). Additional felonies were charged arising out of Castellon’s conduct from November 26, 2009, to April 5, 2010: stalking with a prior conviction (case No. 06CF3130) (§ 646.9, subd. (c)(2)) (count 5); and stalking with a restraining order (§ 646.9, subd. (b)) (count 6). Castellon was also charged with several misdemeanors including: vandalism against Rolando on February 21, 2010 (§ 594, subds. (a) & (b)(1)) (count 7); battery against Vincenta on February 21, 2010 (§ 242) (count 11); and four counts of disobeying the protective order issued in case No. 07WF0928 on the following dates: November 26, 2009, December 21, 2009, February 21, 2010, and March 2, 2010 (§ 166, subd. (a)(4)) (counts 8, 9, 10, and 12.) The amended information alleged enhancement allegations for personal use of a firearm as to count 1 (§ 12022.53, subd. (b)) and count 2 (§ 12022.5, subd. (a)), and alleged Castellon had two prior strikes (§§ 667, subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)) and one serious prior felony (§ 667, subd. (a)(1)).
Castellon pleaded guilty to the misdemeanor counts (counts 7 through 12) and sentencing was stayed until trial on the felony counts. The jury found Castellon guilty of kidnapping (count 1); domestic battery causing injury with a prior conviction (count 3); violation of a protective order with a prior (count 4); stalking with a prior conviction (count 5); and stalking with a restraining order (count 6). He was found not guilty of burglary (count 2). The jury found the gun use allegations to be true. In a bifurcated trial, the court found the prior conviction allegations to be true.
At sentencing, the trial court struck one of Castellon’s strike priors and imposed a total term of 25 years calculated as follows: the middle term of five years for kidnapping (count 1) doubled to 10 years because of the prior strike conviction, plus 10 years for the section 12022.53, subdivision (b), gun use enhancement and 5 years for the section 667, subdivision (a)(1), serious prior felony conviction. The court imposed separate concurrent six-year terms for domestic battery (count 3), stalking with a prior stalking conviction (count 5), and stalking violating a restraining order (count 6), and a concurrent four-year term for violating a protective order with a prior (count 4). The court suspended sentences for all the misdemeanor convictions (counts 7 through 12).
DISCUSSION
A. Counts 5 & 6: Stalking
Castellon was convicted as charged on count 5 of stalking with a prior conviction in violation of section 646.9, subdivision (c)(2), and stalking with a restraining order in violation of section 646.9, subdivision (b). Both counts were based on his conduct from November 26, 2009, to April 5, 2010. On each count the trial court sentenced him to a six-year term to run concurrent with his sentence on count 1. Castellon contends the two stalking convictions are based on the same conduct, and thus he can only be sentenced on one count. The Attorney General asserts Castellon could only be convicted of one count of stalking and one of the convictions must be vacated.
Section 646.9 provides in relevant part: “(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison. [¶] (b) Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years. [¶] (c)... (2) Every person who, after having been convicted of a felony under subdivision (a), commits a violation of this section shall be punished by imprisonment in the state prison for two, three, or five years.”
People v. Muhammad (2007) 157 Cal.App.4th 484 (Muhammad), is on point. In that case, defendant was convicted of stalking (§ 646.9, subd. (a)), stalking in violation of a restraining order (§ 646.9, subd. (b)), stalking with a prior terrorist threats conviction (§ 646.9, subd. (c)(1)), and stalking with a prior felony stalking conviction (§ 646.9, subd. (c)(2)). Each count was based on the same conduct. (Muhammad, supra, 157 Cal.App.4th at p. 486.) The court concluded section 646.9, subdivisions (b) and (c), do not define separate substantive offenses. Section 646.9, subdivision (a), sets out the elements of the crime of stalking. Section 646.9, subdivisions (b) and (c), “are penalty provisions triggered when the offense of stalking as defined in subdivision (a)... is committed by a person with a specified history of misconduct.” (Muhammad, supra, 157 Cal.App.4th at p. 494.)
Here, as in Muhammad, Castellon committed the crime of stalking against Christina when a restraining order was in effect (§ 646.9, subd. (b)), and after having been previously convicted of felony stalking (§ 646.9, subd. (c)(2)). Thus, when Castellon “committed the single offense of stalking, his history of misconduct satisfied [two] separate penalty provisions, each of which required that he be subject to a greater punishment than imposed in section 646.9, [subdivision] (a). [Citation.] Though the single stalking offense was charged in four separate counts, defendant could be convicted of only one count of stalking. Consequently, three of defendant’s four stalking convictions must be vacated. [Citation.]” (Muhammad, supra, 157 Cal.App.4th at p. 494; see also People v. Markley (2006) 138 Cal.App.4th 230, 244 [section 646.9, subd. (c)(2), provides “alternative sentencing scheme” if defendant suffered previous stalking conviction]; People v. Kelley (1997) 52 Cal.App.4th 568, 576 [section 646.9, subd. (b), does not define stalking crime but creates punishment enhancement]; People v. McClelland (1996) 42 Cal.App.4th 144, 152 [section 646.9, subd. (b), provides enhanced punishment].)
Although Castellon and the Attorney General agree one of the two stalking convictions must be dismissed, neither suggests which one should go. Although the trial court imposed the same concurrent sentence on each count (middle term of three years, doubled), because count 5 felony stalking in violation of section 646.9, subdivision (c)(2), provides for the potentially greater punishment (two, three, or five years), we will vacate the conviction on count 6, stalking in violation of a restraining order.
B. Counts 4, 8, 9, 10 & 12: Violation of Restraining Order
Castellon was charged with five counts of violating the protective order issued in case No. 07WF0928. Each count was related to one of the incidents that formed the stalking counts: Count 4, felony violation of the protective order with a prior (§ 166, subd. (c)(4)) on April 5, 2010; and counts 8, 9, 10, and 12, misdemeanor disobeying a protective order (§ 166, subd. (a)(4)) on November 26, 2009, December 21, 2009, February 21, 2010, and March 2, 2010. The trial court imposed a concurrent four-year term on the felony count (count 4) and suspended sentence on the four misdemeanor counts. Castellon contends section 654 requires his sentences on these counts be stayed because they were based on the same course of conduct as the stalking offenses. We agree.
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.” “The purpose of this legislative protection against punishment for more than one violation arising out of an ‘act or omission’ is to insure that a defendant’s punishment will be commensurate with his culpability.” (People v. Perez (1979) 23 Cal.3d 545, 550-551 (Perez).)
“[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.... If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Perez, supra, 23 Cal.3d at p. 551; People v. Lewis (2008) 43 Cal.4th 415, 519.) Whether a course of conduct is divisible and thus gives rise to more than one act under section 654 depends on the defendant’s intent and objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) If all of a defendant’s offenses were incident to one objective, he or she may be punished for any one of the offenses, but not more than one. (Ibid.) However, if a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he or she may be punished for the independent violations committed in pursuit of each objective even though the violations were part of an otherwise indivisible course of conduct. (Perez, supra, 23 Cal.3d at p. 551.)
Whether section 654 applies is generally a question of fact. (Perez, supra, 23 Cal.3d at p. 552, fn. 5.) A trial court’s finding a defendant harbored a separate intent and objective for each offense will be upheld on appeal if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.) Where section 654 applies to a given count, sentence is imposed and stayed. (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)
We conclude the court should have stayed the sentences on counts 4, 8, 9, 10, and 12 under section 654. The Attorney General’s assertion section 654 is not violated because the offenses (violation of a restraining order and stalking) have different elements is unavailing. The factual basis for Castellon’s conviction on counts 4, 8, 9, 10, and 12, was his violation of the no-contact order on November 26, 2009, December 21, 2009, February 21, 2010, March 2, 2010, and April 5, 2010, the same conduct that formed the factual basis for his stalking conviction based on his stalking conduct from November 26, 2009, to April 5, 2010. Section 654 prohibits multiple punishments for the same conduct. Accordingly, the sentences on counts 4, 8, 9, 10, and 12 should be stayed.
DISPOSITION
The conviction on count 6, and the sentence imposed thereon, is vacated. The sentences on counts 4, 8, 9, 10, and 12 are stayed pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and forward it to the Department of Corrections and Rehabilitation, Division of Adult Operations. The judgment is affirmed as modified.
WE CONCUR: BEDSWORTH, ACTING P. J.ARONSON, J.