Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F8405.
NICHOLSON, Acting P. J.
A jury found defendant Nathan Alexander Downey guilty of inflicting corporal injury upon a spouse (Pen. Code, § 273.5, subd. (a)), assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)), and attempted robbery (§§ 664, 211). The trial court thereafter found defendant had served three prior prison terms within the meaning of section 667.5, subdivision (b).
Further undesignated statutory references are to the Penal Code.
Sentenced to seven years six months in prison, defendant appeals. He contends there was insufficient evidence to support his conviction for attempted robbery, that his sentence for attempted robbery must be stayed pursuant to section 654, and that the trial court miscalculated his custody credits. We modify the custody credits and otherwise affirm.
BACKGROUND
On September 27, 2007, Shasta County Sheriff’s Deputy David Eoff responded to an “incomplete” 911 call placed by defendant’s wife, Dawn. An “incomplete” call occurs when the call taker is unable to hear anything on the other end of the line. Deputy Eoff knocked on the Downey’s door and Dawn answered. She was scratched, bleeding, and dirty with leaves in her hair. She had a red mark over her left eye that was raised and swollen, a black eye, watery eyes, a bleeding scratch on her chest, scratches on her back, and blood on both of her forearms. It was also apparent she had urinated on herself. Deputy Eoff asked Dawn what was going on and she motioned with her eyes toward defendant, who was laying on the floor.
Deputy Eoff then asked defendant what had happened. Defendant would not speak to him so he had defendant step outside and asked again. Defendant responded that he was not going to tell the officer anything. Deputy Eoff left defendant in the custody of another officer and went back to the house to talk to Dawn.
Deputy Eoff could tell Dawn had been drinking, but her speech was clear, her balance was good, and she did not seem overly intoxicated. Dawn explained that she and defendant had argued earlier that day. Dawn drove him to her sister’s house after the argument to allow him time to calm down. When defendant returned a couple of hours later, he was heavily intoxicated and angry. Defendant had wanted to leave using Dawn’s daughter’s car, which Dawn had borrowed. Dawn was holding her purse and keys so defendant could not take them. Defendant attempted to take the purse and keys away from Dawn. He then dragged Dawn by her hair out the front door and some 25 to 30 feet up the walkway to the carport. Defendant still attempted to wrestle the purse and keys from Dawn, saying, “Give me the keys you fucking bitch. And money.”
Dawn had $10 in her purse that defendant was trying to obtain.
Defendant then pushed Dawn onto the hood of the car, grabbed her around the neck, strangled her, and then slammed her head onto the hood of the car two or three times. Dawn managed to push him off of her, but defendant then punched her in the face. Dawn still had not released her grip on her purse and keys. Defendant then dragged her by the hair back to the porch.
At this point, the family dog intervened and began attacking defendant. Defendant released his grip on Dawn’s purse, but managed to get the keys. He then went into the house to prepare himself some food. Dawn called 911 but did not say anything because she was afraid defendant would overhear her. She knew the police would respond even if she did not say anything on the phone. Deputy Eoff took photos of Dawn and of what appeared to be drag marks from the porch to the carport.
After talking to Dawn, Deputy Eoff returned to speak with defendant. Defendant said he and Dawn had argued earlier but nothing had happened after that and he did not know how she received her injuries. Deputy Eoff found Dawn’s keys in defendant’s pocket. The keys were entwined with a great deal of what appeared to be human hair. Deputy Eoff did not observe any injuries on defendant and defendant did not complain of any injuries.
During Dawn’s testimony at trial, the court declared her to be a hostile witness, in light of her attitude toward the prosecution’s case. She admitted that before trial, she had discussions with defendant about the possibility of presenting perjured testimony.
At trial, Dawn testified that, on the day of the incident, she was supposed to drive defendant to a meeting with his parole officer, but she had been too intoxicated to drive. They had an argument, after which she gave him $5 and a ride to her sister’s house. When defendant returned, they began arguing again. She grabbed her purse and keys to leave and defendant ran after her. Defendant was trying to get the keys, but she resisted. She admitted that he pulled her hair, but she denied that he strangled her or that she lost control of her bodily functions. He did demand her keys, purse and money. She suffered some body injuries as a result of the struggle, but claimed not to know how she got the black eye.
Defendant testified he and Dawn had argued because she was supposed to drive him to his parole appointment but she refused to take him. He had Dawn drop him off at her sister’s house for awhile and when he returned, Dawn was intoxicated. They resumed arguing about the missed appointment and Dawn announced she was not going to listen anymore. She grabbed her things and headed for the car. Defendant followed and grabbed her to prevent her from leaving and driving while intoxicated. He tried to get the keys from her and she slapped him. He pinned her against the hood of the car and took the keys. She kicked him and knocked him down. When he started to walk away, Dawn tried to hit him. He may have punched her in the eye in response. Defendant returned to the house, put the keys in his pocket, and laid down on the makeshift bed on the floor. He had no intention of leaving the house.
DISCUSSION
I
Substantial Evidence
Defendant contends there was insufficient evidence of his intent to deprive his wife of property so as to support a conviction for attempted robbery. We disagree.
In determining whether the evidence was sufficient to sustain a conviction, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence, i.e., evidence which is reasonable, credible and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) “‘Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) An attempt to commit a crime requires the commission of a direct but ineffectual act toward accomplishing that offense. (§ 21a.)
At trial, the prosecutor argued defendant should be found guilty of robbery because he intended to deprive Dawn of the car and forcefully took her keys. Dawn had borrowed the car from her daughter and defendant had no possessory interest in it. Defendant admitted that he had no right to the keys or car, that Dawn was refusing him permission, and that he forcefully took the keys from her anyway. In fact, there was evidence that he hit her, strangled her, drug her by the hair, and slammed her against the car, in order to get those keys. Thus, there is sufficient evidence to support a finding that defendant was guilty of attempted robbery of the car.
On appeal, however, defendant does not address his attempted robbery of the car. Instead, he argues there was insufficient evidence that he attempted to rob Dawn of her purse and money. There was, however, sufficient evidence of defendant’s attempted robbery of Dawn’s purse and money, as well.
A spouse may be criminally liable for the theft of community property. During the continuance of a marriage, the interest of the spouses in their community property is present, existing and equal, and protected by criminal law from unilateral destruction or damage by the other marital partner. (People v. Kahanic (1987) 196 Cal.App.3d 461, 466.)
Here, defendant does not dispute on appeal that he attempted to forcefully take Dawn’s purse from her, demanding her money, purse and keys. Instead, he argues that taking the money from Dawn’s purse would not have “deprived” her of the property in any meaningful way because she was the primary source of the money they had as a married couple and “it was money he generally had access to, and would have had access to, as soon as their fight was over.”
These facts, however, do not absolve defendant of his crime. Even accepting defendant’s premise that his wife would have given him the money if he had asked for it later or politely, it is still attempted robbery to punch her in the eye, choke her, drag her by the hair, pull out her hair, and forcefully attempt to wrestle her keys and her purse containing money away from her. In sum, the evidence supports the jury’s finding of attempted robbery.
II
Section 654The trial court imposed the upper term of four years for infliction of corporal injury upon a spouse, eight months consecutive for assault, six months consecutive for attempted robbery, and three consecutive one-year terms for the prior prison terms. The sentence for assault was stayed pursuant to section 654. Defendant contends that his sentence for attempted robbery also should have been stayed pursuant to section 654. We find no error.
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.)
Section 654 has been interpreted to prohibit multiple punishments for a single act as well as an indivisible course of conduct. (Neal v. State of California, 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. Beamon (1973) 8 Cal.3d 625, 639; People v. Centers (1999) 73 Cal.App.4th 84, 98.) We review a challenge under section 654 for substantial evidence to support the trial court’s determination. (People v. Osband (1996) 13 Cal.4th 622, 730.)
Arguing that section 654 applies, defendant contends his assaultive actions were not acts of “gratuitous” violence against a helpless victim, which are traditionally viewed as acts not incidental to robbery for the purposes of section 654. (See, e.g., People v. Cleveland (2001) 87 Cal.App.4th 263, 272 [gratuitous beating of elderly, nonresistant robbery victim was not carried out with the same objective as the robbery].) “Gratuitous” or not, however, the evidence supports the trial court’s implied finding that defendant’s entertained multiple objectives during his attack on his wife.
As set forth in the previous section, the evidence supports the finding that defendant had the intent to obtain his wife’s purse, money, car and keys. But the evidence also supports the finding that defendant perpetrated violence on his wife because he was angry with her and punishing her for making him miss his parole appointment. This additional criminal objective is established by the occurrence and substance of their arguments, the amount of violence defendant perpetrated, and the fact that defendant did not even leave after he obtained the car keys. Accordingly, there is substantial evidence to support the trial court’s imposition of multiple punishments.
III
Custody Credits
Defendant was arrested on September 27, 2007, and remained in custody through sentencing on March 3, 2008. The trial court awarded a total of 186 days’ custody credit. Both defendant and the People agree that his custody credits were miscalculated, although neither provide the proper calculation.
Section 4019 provides that “if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.” (§ 4019, subd. (f).) Credit for good behavior while in custody is calculated by dividing the number of days spent in custody by four, rounding that number down to its nearest whole number, and then multiplying the result by two. (People v. Fry (1993) 19 Cal.App.4th 1334, 1341.) Applying that formula, defendant is entitled to receive 236 days’ conduct credits, consisting of 158 actual days and 78 conduct days.
DISPOSITION
The judgment is modified to award defendant, in lieu of the 186 days originally received, with 236 days of custody credits, consisting of 158 actual days and 78 conduct days. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: HULL, J., ROBIE, J.