Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super. Ct. No. SWF012941, Curtis R. Hinman, Judge. (Retired judge of the Riverside Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Michael T. Murphy, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
A jury found defendant guilty of attempted murder (Pen. Code, §§ 664/187, subd. (a)) (count 1), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (count 2), and making criminal threats (Pen. Code, § 422) (count 3)., As to counts 1 and 3, the jury found true the allegations that defendant was personally armed with a dangerous or deadly weapon during the commission of a felony. (§ 12022, subd. (b)(1).) The jury found not true the allegation that the attempted murder was premeditated. (§ 187, subd. (a).) The court sentenced defendant to state prison for a term of six years. Defendant contends the trial court abused its discretion by not staying his sentences for counts 2 and 3 pursuant to section 654. The People concede defendant’s argument is correct as to count 2, but disagree with defendant’s argument concerning count 3. We affirm the judgment as modified in this opinion.
All further references to code sections will be to the Penal Code unless otherwise noted.
The record does not contain a reporter’s transcription of the jury’s verdict.
FACTS
Manuela met defendant approximately four years prior to the incident at issue in this case. Manuela and defendant were friends. The two met at an apartment complex, in Murrieta, where they were both employed. After several months, Manuela stopped working at the complex, but still saw defendant because she lived in the complex. In early 2004, Manuela borrowed $1,700 from defendant in order to pay her rent. Manuela then borrowed approximately $2,500 from defendant, because he “was always asking [her] if [she] needed money.” In February 2005, Manuela repaid defendant the money she had borrowed from him. Eventually, Manuela was evicted from the apartment complex.
Defendant offered to help Manuela lease another apartment by signing the lease. When Manuela found a new apartment, both she and defendant signed the lease, but defendant was not to live in the apartment with Manuela. Nonetheless, after the lease was signed, defendant told Manuela he wanted to live with her and asked her to engage in intercourse with him. Manuela refused. Defendant offered Manuela $20,000 to allow him to live in the apartment with her and engage in intercourse. Manuela again refused. Defendant began following Manuela. Manuela would see defendant at her apartment, on the freeway, at Wal-Mart, and at her children’s school.
In February or March 2005, Manuela met the victim, who is male. The victim sells purses, and Manuela was interested in selling the victim’s purses. In April 2005, the victim came to Manuela’s apartment to show her some purses. Defendant knocked on the door, but Manuela refused to open the door. Defendant then jumped on the balcony and entered the apartment through the balcony door. Defendant told the victim that Manuela was his wife and that it was his apartment. Defendant refused to leave, so Manuela and the victim exited the apartment, and defendant followed them. Manuela and the victim met at her apartment on a weekly basis, and defendant was often in the apartment parking lot.
On one occasion, defendant appeared at the victim’s booth at a swap meet and told the victim to leave Manuela alone because he had plans to marry her. In July or August 2005, defendant arrived at the victim’s house and told the victim’s wife, “Your husband is seeing my wife.” Defendant scared the victim’s wife. The victim called defendant to tell him to leave his wife alone. One or two weeks before the incident in this case, Manuela saw defendant in her apartment parking lot and he said, “If I see you with [the victim] again, I’m going to cut his head off with a machete.”
On August 2, 2005, the victim and Manuela arrived at her apartment complex parking lot, in separate cars. Defendant was in the apartment parking lot, crouched down near a dumpster. The victim stopped his van, and defendant ran to his truck. Defendant entered his truck, but did not close the door. The victim wanted to talk to defendant, because he was upset that defendant spoke to his wife. The victim approached defendant’s truck and asked defendant what he wanted. Defendant replied, “I want to kill you. I’m going to kill you.” Defendant grabbed a machete, and the victim started to run away. Defendant raised the machete over his head, and the victim turned to face defendant, because he thought he would be hit in the back. The victim grabbed the machete and the two men began fighting and fell to the ground. The victim screamed for help. Defendant pushed the machete against the victim’s throat and said, “This is your last day.” Defendant then whispered into the victim’s ears, “This is your day.” Approximately four men witnessed the attack and pulled defendant off of the victim. Murrieta police officers arrived and arrested defendant.
Defendant testified to a different version of the events, in which he was afraid of the victim and acted in self-defense.
The court sentenced defendant to the mitigated prison term of five years for his attempted murder conviction (§§ 664/187, subd. (a)). The court added a one-year prison term for the deadly weapon enhancement (§ 12022, subd. (b)(1)) in count 1, for a total prison term of six years. Defendant was sentenced to a concurrent prison term of three years for the assault with a deadly weapon conviction. Defendant was sentenced to a concurrent two-year prison term for his criminal threats conviction. The court sentenced defendant to a concurrent one-year prison term for the deadly weapon enhancement in count 3. The court did not address the issue of whether defendant’s crimes constituted an indivisible course of conduct. (§ 654.)
DISCUSSION
Defendant contends the trial court abused its discretion by not staying his sentences for assault with a deadly weapon and making criminal threats pursuant to section 654. We agree as to count 2 and disagree as to count 3.
Section 654 provides that a trial court may not punish a defendant under more than one provision of the Penal Code if the defendant’s crimes result from an indivisible course of conduct. (People v. Siko (1988) 45 Cal.3d 820, 823.) Whether a course of conduct is divisible is determined by the intent and objective of the defendant at the time of the offense. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1442-1443.) “‘[I]f all 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.’ [Citation.]” (People v. Evers (1992) 10 Cal.App.4th 588, 602.) “However, if the defendant harbored ‘multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’ [Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the [People] and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” (People v. Jones, supra, 103 Cal.App.4th at p. 1143.)
1.
ASSAULT WITH A DEADLY WEAPON
The People concede defendant is correct that his sentence for assault with a deadly weapon should have been stayed pursuant to section 654, because his objective during the assault was the same as his objective during the attempted murder. We agree with defendant and the People.
Both counts address actions that were commonly linked by defendant’s objective to kill the victim; there is no evidence to indicate defendant had any other intent. Accordingly, we find defendant’s conduct during the assault and attempted murder arose from an indivisible course of conduct, as there is a lack of substantial evidence to support a finding that defendant had more than one criminal objective at the time he committed the offenses in counts 1 and 2.
2.
CRIMINAL THREATS
We now address defendant’s contention concerning his sentence for making criminal threats.
When defendant was in his truck he told the victim, “I want to kill you. I’m going to kill you.” As defendant pushed the machete against the victim’s throat he said to the victim, “This is your last day.” Defendant also whispered into the victim’s ear, “This is your day.”
The evidence supports a finding that defendant threatened the victim with the separate and independent objective of causing the victim to suffer and be in sustained fear. There is nothing in the record that supports an inference that defendant’s threats were made in order to facilitate his objective of killing the victim. Arguably, defendant’s threats warned the victim of the impending violence and gave the victim the brief opportunity to run away and yell for help, which defeated defendant’s objective of killing the victim. Accordingly, we find the court did not abuse its discretion by not staying defendant’s sentence for making criminal threats pursuant to section 654.
DISPOSITION
The sentence is modified to stay defendant’s sentence for count 2. The trial court is directed to amend the abstract of judgment accordingly and to forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: Richli, J., King, J.