Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F6555
SIMS, Acting P. J.A jury convicted defendant William Dale Croy, Jr. of first degree burglary (Pen. Code, § 459; count 2; undesignated section references are to the Penal Code), assault with a deadly weapon and by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 4), sexual battery by restraint (§ 243.4, subd. (a); count 5), false imprisonment by violence (§§ 236, 237; count 6), and vehicle theft (Veh. Code, § 10851, subd. (a); count 7), and found accompanying weapon use allegations to be true. The jury deadlocked on counts 1 (assault with intent to commit rape) and 3 (attempted forcible rape) and the great bodily injury allegation in connection with count 4; the court declared a mistrial as to those counts and allegations and later dismissed the same on the prosecutor’s motion.
The court sentenced defendant to state prison for an aggregate term of 10 years as follows: the upper term of six years for burglary (count 2), plus one year for use of a deadly weapon (§ 12022, subd. (b)); a consecutive one-third the midterm or one year for assault with a deadly weapon (count 4); a consecutive one-third the midterm or one year for sexual battery by restraint (count 5); plus four months (one-third of the one-year enhancement) for use of a deadly weapon (§ 12022, subd. (b)); a consecutive one-third the midterm or eight months for vehicle theft (count 7). The court stayed sentence (§ 654) on false imprisonment (count 6) and its accompanying weapon use enhancement.
Defendant appeals. He contends that the trial court erroneously concluded that section 654 did not bar separate punishment for the sexual battery offense and the assault with a deadly weapon offense. We conclude that the trial court properly refused to stay sentence for the sexual battery offense but agree that the court should have stayed sentence for the assault with a deadly weapon offense.
FACTS
About 9:00 p.m. on July 30, 2007, the 61-year-old victim went to bed and fell asleep. She lived alone in a second story apartment. Sometime after midnight, she heard tapping on her front door. She looked through the peep hole and saw defendant. She had met defendant in the church parking lot and he had been in her apartment on a prior occasion. She did not respond to his knock and went back to bed. Defendant tapped again on her door and she ignored it, trying to fall back to sleep. Shortly thereafter, she opened her eyes and defendant stood over her with a knife. She yelled “no” and grabbed for the knife. A couple of her fingers were cut. Defendant put one hand over her mouth and with the other hand, tried to cut her throat with the knife. The knife left scrape marks and punched a hole in her chin. The victim struggled. When she asked defendant what he wanted, he said nothing and put his hand under her shirt, touching her breast. He also tried to push her pants down. The victim yelled and tried to free herself. Defendant punched her in the stomach. A neighbor heard the victim’s screams and shined a flashlight in her window. Defendant fled, jumping out a window and speeding off in a truck he had stolen from someone else earlier in the evening. The victim was treated at a hospital for her hand, neck, and chest lacerations; her hand and neck lacerations required suturing.
The prosecutor presented evidence of a prior sexual offense, that is, assault with intent to rape while in the commission of a burglary, for the purpose of showing identity, motive, common plan, intent, and propensity. In November 2003, 16-year-old I.D. was asleep in her bedroom in the home she shared with her mother. She awoke to 17-year-old defendant at the foot of her bed touching her leg. When she yelled for her mother, defendant told her to be quiet. He put the nightstand up against the door as a barricade. The victim knew defendant from high school and he was friends with her brothers. Defendant had been to her home when her brothers had been there. Defendant got on top of her and held her down by her throat. He threatened to rape and kill her. Defendant touched her breasts and tried to pull her pants down. When I.D.’s mother knocked on the bedroom door, defendant jumped out the window.
On cross-examination, I.D. recalled that defendant had been sitting on the edge of her bed, talking to her but not touching her, for the first 20 minutes of the 45-minute period he was in her room. She admitted that a couple of times while he was touching her, she had stopped resisting but he did not do anything other than touch her. She saw no weapons.
Defendant testified and confirmed I.D.’s account of the offense. He explained he was attracted to I.D. and, being drunk, he had more courage. He spent time in the California Youth Authority as a result of his offense.
Defendant denied he went to the current victim’s apartment but admitted having gone to the complex where she lived the night of the offense. He denied having ever been in the victim’s apartment. He claimed he had been out drinking with friends and took a truck that did not belong to him.
Defendant’s testimony at trial was inconsistent with his prior statements. In an interview with the police after his arrest, defendant admitted going the the current victim’s apartment. He claimed she refused to help him. He admitted he was “fighting around” with her and using something, maybe a knife, to cut her throat in order to scare her. He had been drinking. He admitted that while “fighting” with the victim, he “probably did grab” the victim’s breast.
DISCUSSION
The trial court stayed sentence on false imprisonment by violence (count 6) pursuant to section 654, finding that it was incidental to sexual battery by restraint (count 5). In declining to apply section 654 to the subordinate terms for sexual battery by restraint and the assault with a deadly weapon offense, the court determined that the offenses were “separate acts of violence or separate threats of violence, none dependent on any other” and that “this is not all one big lump of behavior.”
Defendant contends the sentence for assault with a deadly weapon (count 4) and sexual battery by restraint (count 5) must be stayed, arguing the burglary and all the assault-related offenses involved an indivisible course of conduct. Defendant claims “there is absolutely no evidence to suggest [he] had any intent other than to sexually assault the victim in this case.” The People concede that the sentence for the sexual battery offense should be stayed but not the sentence for the assault offense since the evidence supports the trial court’s implied finding of dual intents. We conclude just the opposite: that the sentence for the assault with a deadly weapon offense should be stayed but not the sentence for the sexual battery offense and its accompanying enhancement.
Section 654, subdivision (a), provides, in relevant part, as follows: “[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 insure that the defendant’s punishment will be 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, “‘“[i]f the evidence discloses that a defendant entertained multiple criminal objectives which were 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 parts of an otherwise indivisible course of conduct.”’” (People v. Centers (1999) 73 Cal.App.4th 84, 98 (Centers).)
“The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple. Each case must be determined on its own facts. [Citations.]” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) “‘The defendant’s intent and objective are factual questions for the trial court,’” and its findings of separate intent and objective will be upheld if supported by the evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Cleveland (2001) 87 Cal.App.4th 263, 271.)
“Burglary consists of entry into a house or other specified structure with the intent to commit a felony. [Citation.] Thus, ordinarily, if the defendant commits both burglary and the underlying intended felony,... section 654 will permit punishment for one or the other but not for both.” (Centers, supra, 73 Cal.App.4th at pp. 98-99, and cases cited therein.)
Defendant was charged with burglary with intent to commit a larceny and any felony. The jury was instructed and the prosecutor argued that defendant entered with the intent to commit rape and/or an assault with a deadly weapon and/or theft. The jury was unable to reach a verdict on the charges of assault with intent to commit rape and attempted rape. The jury found defendant guilty of burglary, assault with a deadly weapon, sexual battery by restraint, and false imprisonment by violence.
We conclude that substantial evidence supports the trial court’s conclusion that the crime of sexual battery by restraint was independent of the burglary offense. The evidence adduced at trial reflects that defendant entered with the intent to commit an assault with a deadly weapon. He stood over the victim holding a knife. When she woke up and grabbed for the knife, he attempted to cut her throat. When she asked what he wanted, only then did he touch her breast and attempt to push her pants down.
Defendant’s reliance upon In re McGrew (1967) 66 Cal.2d 685 is misplaced. At 4:00 a.m., the victim was awakened when defendant rang her door bell and asked for Janet. She told him no one lived there by that name. (Id. at pp. 686-687.) When the defendant forced his way into her home, he declared his intent to “‘have her in every way possible.’” (Id. at pp. 687, 688.) The defendant was convicted of burglary, oral copulation, and two counts of rape. (Id. at pp. 687, 689.) The trial court imposed concurrent terms on all the offenses. (Id. at p. 687.) Since there was no evidence of any intent other than to sexually assault the victim, McGrew concluded that the sentences for the sex offenses had to be set aside. (Id. at pp. 688-689.)
McGrew is of no assistance to defendant. The facts here show that the sexual battery by restraint was an afterthought and may be separately punished. (See People v. Mixon (1990) 225 Cal.App.3d 1471, 1476-1478, 1487; People v. McGahuey (1981) 121 Cal.App.3d 524, 528-530.)
The evidence supports the conviction of burglary with the intent to commit an assault with a deadly weapon and the later separate intent to commit a sexual battery. We will order the judgment modified to stay sentence for the assault with a deadly weapon offense.
DISPOSITION
The judgment is modified to stay (Pen. Code, § 654) sentence on assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 4). With the stay on count 4, defendant’s aggregate sentence is nine years, rather than 10 years. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: NICHOLSON, J. CANTIL-SAKAUYE, J.