Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF107874A
SIMS, J.A jury convicted defendant Larry Felix Cobarrubias of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a) -- count 1), making a criminal threat (§ 422 -- count 2), assault with a deadly weapon (§ 245, subd. (a)(1) -- count 3), and dissuading a witness (§ 136.1, subd. (c)(1) -- count 4), while sustaining allegations that he personally used a deadly weapon in counts 2 and 3. The court sustained an allegation that defendant had a prior domestic violence conviction and sentenced him to five years in prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the court should have stayed imposition of sentence on counts 2 and 3 pursuant to section 654. We shall modify the judgment and affirm.
BACKGROUND
Sherry Cobarrubias is defendant’s wife and the mother of his five children. At the time of the trial, they had been married for four years and together for 18.
On April 4, 2008, Cobarrubias took their three eldest children to school. When she returned, defendant ran up to the car and accused her of cheating on him, calling Cobarrubias “Bitch, whore, slut.” Someone opened the door and defendant began to hit her, striking her in the head with a closed fist, and kicking her legs and back. Cobarrubias held up her hands in defense while their two-year-old son, who was in the van, yelled, “Mama.” Defendant ended the assault by telling Cobarrubias to “go in the house with the little ones.”
Cobarrubias went inside, where defendant continued to yell at her and accuse her of infidelity. He eventually produced a kitchen knife with a blade between six and eight inches long. Holding the knife towards Cobarrubias’ nose, defendant said he was going to cut off her nose “Apache style.” Cobarrubias was scared.
Both defendant and Cobarrubias have Native American ancestry.
Waiving the knife a few inches in front of Cobarrubias’s face, defendant said he should do the same thing that their neighbor Dan Nagy did to his wife. Defendant added, “That’s the way we get the truth out of you bitches.” He then noticed the door was open, and walked over to shut it. Defendant saw that the police were coming, and told Cobarrubias to “[j]ust keep quiet, don’t say nothing.”
Jose Mendoza was in his apartment when he heard children crying. He looked outside the window and saw defendant hit Cobarrubias on her left hand. Cobarrubias was crying and had a red, swollen mark on her forehead.
When Mendoza’s girlfriend, Maria Lopez, went outside to smoke a cigarette, she saw that her neighbor Cobarrubias was crying. A young girl appeared and asked, “Mommy, why are you crying?” Cobarrubias replied, “your father, he hit my hand with a car.” Cobarrubias’s hand appeared swollen. When she finished her cigarette, Lopez went into her apartment and told Mendoza what she had seen.
Mendoza called the police, then drove to look for an officer. He quickly found Stockton Police Officer Luis Mosqueda, who he led back to the Cobarrubias residence. Mosqueda knocked on the door and was met by Cobarrubias. She appeared upset and had a swelling knot on her head. Cobarrubias initially told the officer nothing was going on, but later admitted that defendant held a knife to her and told her to keep her mouth shut.
DISCUSSION
Defendant was sentenced to five years in prison, consisting of a lower term of two years for corporal injury to a spouse on count 1, a consecutive middle term of three years for dissuading a witness in count 4, with concurrent two-year terms for criminal threats and assault with a deadly weapon in counts 2 and 3. His sole contention on appeal is the court should have stayed imposition of sentence on counts 2 and 3 pursuant to section 654.
Section 654, subdivision (a), provides in pertinent part that “[a]n 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 section is to ensure the defendant’s punishment is commensurate with his criminal liability. (Neal v. State of California (1960) 55 Cal.2d 11, 20 (Neal).)
Section 654 has been interpreted to prohibit multiple punishments for a single act as well as an indivisible course of conduct. (Neal, supra, 55 Cal.2d at p. 19.) “Whether a 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 actor. 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.” (Ibid.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct. (People v. Centers (1999) 73 Cal.App.4th 84, 98.)
“The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.] The factual finding that there was more than one objective must be supported by substantial evidence. [Citation.]” (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
Defendant argues that counts 2, 3, and 4 took place inside defendant’s home at the same time. He notes the prosecutor’s argument stressed that defendant held a knife to his wife while making the threats. The prosecutor also related the use of a knife to count 4, the dissuading a witness charge, arguing defendant had the knife up against Cobarrubias when he tried to dissuade her from testifying. From this, defendant concludes that the People’s theory of the case and the facts at trial show counts 2, 3, and 4 formed a single course of action with a single intent.
The Attorney General contends the present case is governed by People v. Nubla (1999) 74 Cal.App.4th 719. In that case, the defendant was convicted of assault with a deadly weapon and corporal injury on a spouse after committing several acts of violence, including pushing his wife onto a bed, causing her nose to bleed, pushing a gun into the back of her head, and then turning her over and putting the gun into her mouth, cutting her lip, and chipping her tooth. (Id. at p. 723.) The trial court was entitled to conclude that each act was separate for purposes of section 654. (Nubla, at p. 731.) Under Nubla, it does not matter whether multiple physical assaults perpetrated against a single victim over a period of time could be broadly said to have been motivated by a single criminal objective. (Ibid.) Rather, in such circumstances, section 654 does not bar multiple punishments as long as none of the criminal acts was committed as a means of committing any other criminal act, or facilitated the commission of any other criminal act, or was merely incidental to any other criminal act. (Nubla, at p. 731.)
In order to commit the crime of criminal threats in count 2, defendant must willfully threaten to commit a crime resulting in injury or death to another person with the intent that it be taken as a threat. (§ 422.) A conviction for assault with a deadly weapon requires proof that the defendant: (1) willfully committed an unlawful act which by its nature would probably and directly result in the application of physical force on another person; (2) he was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person; (3) he had the present ability to apply physical force to the person of another; and (4) he used a deadly weapon in the assault. (§ 245, subd. (a)(1); CALCRIM No. 875.) The offenses in counts 2 and 3 took place at the same time -- when defendant waived the knife at Cobarrubias and threatened her. Each crime was a means of committing the other offense and advanced the same objective, inflicting fear on Cobarrubias. Nubla is thus inapposite, and the court was without authority to separately punish defendant for both offenses.
Count 4 is another matter. The crime of dissuading a witness took place slightly after the offenses in counts 2 and 3, when defendant noticed the open door, started to close it, and then told his wife not to talk to the police. Section 654 does not apply to foreclose separate punishment for a violent offense committed after the defendant has had an opportunity to reflect after the prior offenses. (People v. Trotter (1992) 7 Cal.App.4th 363, 367-368.) Defendant also harbored a separate objective for the crime of dissuading a witness, avoiding arrest, than for the offenses in counts 2 and 3.
We conclude that while section 654 forbids separate punishments for both counts 2 and 3, this provision does not prevent the imposition of punishment for one of those counts. Accordingly, we shall modify the judgment to stay imposition of sentence for count 2, which has the shorter term. (§§ 18, 245, subd. (a)(1), 422.)
DISPOSITION
The judgment is modified to stay imposition of sentence for count 2 (Pen. Code, § 422) pursuant to Penal Code section 654. As modified, the judgment is affirmed. The court is to prepare a modified abstract of the judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J. BLEASE, J.