Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF132811, Gloria Trask, Judge.
Martin Kassman, 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, Assistant Attorney General, Steve Oetting and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant and appellant Melvin Fisher guilty of assault with a deadly weapon, infliction of corporal injury on a cohabitant, kidnapping, attempted robbery, and second degree burglary. The trial court sentenced defendant to eight years in state prison.
On appeal, defendant contends that (1) his sentences for the attempted robbery (count 4) and burglary (count 5) convictions should be stayed under Penal Code section 654; and (2) the use of a deadly weapon enhancement for his conviction on count 1 (assault with a deadly weapon) should be stricken.
All statutory references are to the Penal Code unless otherwise specified.
As set forth below, we hold that the trial court erred in imposing the weapon use enhancement as to count 1 (assault with a deadly weapon), and in imposing concurrent sentences for count 4 (attempted robbery) and count 5 (burglary).
I
FACTUAL AND PROCEDURAL HISTORY
A. Factual Background
The victims in this case were Greta W. and Edward Collins, a man with whom Greta had a prior relationship. Around the time of the crimes, Greta was dating and living with defendant. While the two were dating, there were at least two incidents of domestic violence reported before the current incident.
1. Defendant’s Attack on Collins
After drinking several beers together on the evening of October 13, 2006, at Collins’s residence in Perris, Greta invited Collins to her new residence in Moreno Valley. As Greta was showing Collins her house, defendant came downstairs. He was upset and spoke angrily at Greta. In an effort to diffuse the situation, Collins, who was initially standing next to Greta, stepped between them and urged defendant to stop arguing. Suddenly, defendant attacked Collins with a screwdriver. Defendant stabbed Collins multiple times, striking him in his chest, clavicle, leg and face. Collins was eventually able to gain control of the screwdriver and take it away from defendant. Collins stumbled outside and went to a neighbor’s residence for help. The neighbor called 911.
Around 9:30 p.m., police and paramedics responded to the 911 call. Collins’s forehead and eyelid were cut, he had a bloody nose, he had puncture wounds in his chest and left thigh, and his vital signs were unstable. Collins was transported to Riverside County Regional Medical Center for treatment. At the hospital, the doctors determined that two stab wounds to Collins’s upper right and left chest had punctured both of his lungs. Hence, Collins hemorrhaged blood in both sides of his chest cavity, requiring the insertion of chest tubes to relieve the pressure inside his chest. Collins was hospitalized for four days.
The police interviewed Greta at the scene. She told them that when she brought Collins to her house, defendant became jealous and tried to “go at her.” When Collins stepped in and told defendant not to “mess” with Greta, Collins and defendant began to fight. Greta informed police that she left to get help at a neighbor’s house. When she returned, she noticed blood in the foyer and her car was gone. Later that evening, the police located the screwdriver defendant used in the attack in a flowerbed outside of Greta’s residence. At that time, Greta asked the police for a ride to get away from the residence because she was afraid that defendant would return. The police drove her to a nearby convenience store and had no further contact with her that evening.
2. The Beating, Kidnap, Burglary, and Robbery Attempt
Greta spent the night in a park because she was fearful of defendant based on his prior acts of domestic violence against her. When she returned to her residence the following morning on October 14, defendant was there. Defendant told Greta that he needed money to run away because of the attack on Collins the night before. When Greta responded, “no,” defendant became angry and punched her in the face four or five times; Greta’s nose started to bleed. Defendant instructed Greta to take a bath and get cleaned up because they were going to the bank. When Greta resisted going to the bank with defendant, he picked up a screwdriver and pointed it at her. Defendant told her that she was going to the bank, and after that, he had “something” for her. Greta believed that defendant was going to kill her. While she drove to the bank, defendant held the screwdriver to her stomach and repeated that he had “something” for her.
About 10:00 a.m., Greta and defendant entered the bank. A bank teller recognized Greta as a regular customer at the bank. The teller noticed Greta mouth the words, “help me,” twice as she approached the teller’s window. Defendant, whom the teller did not recognize, was standing close to and slightly behind Greta. Greta looked scared. At the teller’s window, Greta requested a withdrawal amount of $500 or $700. The teller excused herself to the back office and informed her supervisor of the conduct she had just observed. The supervisor observed Greta and defendant through a peephole in the office door. She saw defendant pace back and forth and occasionally stand beside Greta and say something in her ear. The supervisor then called 911.
The bank teller returned to the teller window. During this time, the teller was on the telephone with the 911 operator who was instructing the teller questions to ask Greta. The teller noticed that Greta’s nose was bleeding. By this time, defendant had walked out of the bank. The supervisor alerted security to stop defendant. When the security guard attempted to get defendant’s attention, defendant ran. Defendant was wearing a black hooded sweatshirt and a black baseball hat when he ran from the bank. The supervisor left the bank and drove out of the parking lot in her car, in the direction defendant ran, in an attempt to inform the police of defendant’s whereabouts. She was unable to locate defendant. However, when she was returning to the bank, the supervisor saw defendant walking, dressed in a T-shirt.
The police had arrived at the bank and contacted Greta. Greta had an open cut beneath her nose that was bleeding, scratches on her cheeks and neck, and her right ear was bruised. Greta was uncooperative when the police attempted to photograph her injuries. Moreover, Greta was evasive and emitted an odor of alcohol. However, Greta appeared to be coherent and wanted to leave the bank because she was scared. Greta told the police what had happened the night before with Collins, and how defendant had become violent towards her the morning after the attack on Collins. Defendant had the keys to Greta’s car that was still parked in the bank parking lot. When an officer escorted Greta to the car, the officer noticed a screwdriver on the passenger seat. Greta stated, “[T]hat’s the screwdriver he used to threaten me.”
During a search of the area, the police discovered a black sweatshirt and black baseball hat stuffed behind a toilet seat in a nearby fast-food restaurant.
The police drove to Greta’s home. Defendant was not there. Greta refused further assistance. Moreover, she stated that she would lie on the witness stand and deny everything if forced to testify against defendant. Greta was fearful of defendant; she did not want defendant to know what she had said regarding his recent conduct.
Later that afternoon, the bank contacted the police again because Greta returned to retrieve her car. However, because Greta did not have her keys, the police drove her home again. Once at the residence, an officer noticed the blood stains from the earlier incident had been cleaned up. It also appeared as though someone had recently showered at the residence. The officer observed men’s clothing in the master bedroom. The officer called for backup and announced his presence. There was no response. During a search, defendant was located hiding in a bedroom closet and was arrested.
3. Prior Acts of Domestic Violence
About two months before defendant’s attack on Collins and the incidents thereafter, defendant beat Greta. Patrol officers were flagged down by passers-by walking their dog who noticed Greta laying in a fetal position in the grass next to a curb. She had a bloodied nose, a cut above her right eye, and bruising on the inside of her left forearm. Greta was evasive but admitted that defendant had caused the injuries. The police drove Greta home. While they were there, defendant arrived home and was arrested. Greta told defendant, “I’m not the one who called the police. They just showed up.”
On June 2, 2005, an officer was dispatched to Greta’s residence following a 911 call. Greta would not let the officer inside the residence. The 911 operator had reported that she could hear a man and a woman arguing during the call. Greta, however, told the officer that she had dialed 911 by mistake. The officer noticed that Greta had scratches on her nose and neck. Greta admitted that defendant caused her injuries. She insisted, adamantly, that she did not want defendant to get into trouble. She was afraid that he would kill her. Greta refused to provide defendant’s contact information to the police. Greta smelled like alcohol but appeared coherent.
B. Procedural Background
After consolidating two cases, on February 13, 2007, the Riverside County District Attorney filed a third amended information, the operative information in this case. The information charged defendant with five felony counts: (1) assault with a deadly weapon under section 245, subdivision (a)(1) (count 1), with enhancements for personal infliction of great bodily injury under section 12022.7, subdivision (a), and personal use of a deadly weapon under section 12022, subdivision (b)(1); (2) infliction of corporal injury on a cohabitant with a prior conviction of same under section 273.5, subdivision (e)(1) (count 2); (3) kidnapping under section 207, subdivision (a) (count 3), with an enhancement for personal use of a deadly weapon under section 12022, subdivision (b)(1); (4) attempted robbery under sections 211 and 664 (count 4); and (5) burglary under section 459 (count 5).
On the same day, defendant pled not guilty on all counts and denied the special allegations.
On February 28, 2007, a jury found defendant guilty on all five counts and found all three enhancement allegations true.
On April 27, 2007, the trial court sentenced defendant to eight years in prison.
II
ANALYSIS
A. Section 654
Defendant contends that defendant’s sentence on the attempted robbery and burglary counts, counts 4 and 5 respectively, should have been stayed under section 654, rather than run concurrent with the kidnapping count (count 3), because all three counts reflect a single course of conduct.
1. Background
At the sentencing hearing, the trial court stated its “tentative thoughts” as to defendant’s sentencing. The court stated that it would impose a midterm sentence on the kidnapping count, the principal count. The court, thereafter, stated that “the attempted robbery, the burglary, and the corporal injury would run concurrently [to the kidnapping sentence], but . . . the assault with other than a firearm on the other person would run consecutively.” The court explained: “Because to my mind everything that happened with the one victim, you know, taking her to the bank to get the money, and all that would go together, but that the other offense of stabbing the other gentleman with the screwdriver would be a separate offense and that would run consecutively.”
Defense counsel agreed with the trial court’s tentative sentence and stated that it intended to request that the kidnapping count be deemed the principal count and “run everything else [section 654] with regards to the incident.”
The prosecution also agreed, stating: “I agree with the Court that Counts 4 [robbery] and 5 [burglary] will be [section 654] because [defendant] entered the bank with the intent to try and rob the money from the victim . . . .” The prosecutor, however, argued that the domestic violence count should be sentenced separately because defendant’s conduct of forcing Greta to go to the bank with a screwdriver was “a completely separate act from him actually hitting her” inside the residence.
Thereafter, the trial court reiterated that its intention was that “all the other offenses that are related to Greta [W.] would run concurrent with the kidnapping. And then the . . . other offense, the [section 245 assault] and the enhancement would run consecutive.” Thereafter the court went off the record.
When proceedings on the record resumed, the trial court sentenced defendant to eight years in prison. The court imposed (1) the midterm of five years on count 3 (kidnapping), the principal count; (2) a consecutive one-year weapon use enhancement, one-third the midterm or one year on count 1 (assault), to run consecutively to count 3; and (3) a consecutive one-year great bodily injury enhancement. The trial court imposed a concurrent one-year enhancement for the use of a deadly weapon allegations related to count 1. The midterm of four years for count 2 (infliction of corporal injury), and the midterms of two years each for counts 4 (robbery) and 5 (burglary) were imposed to run concurrently to the principal count. When the court imposed the sentences for counts 4 and 5, it made no mention of section 654.
2. Discussion
Subdivision (a) of section 654 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
Section 654 applies not only to the same criminal act, but also to an indivisible course of conduct committed pursuant to the same criminal intent or objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209, citing Neal v. State of California (1960) 55 Cal.2d 11; see also People v. Perez (1979) 23 Cal.3d 545, 551.) “ ‘ “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.” ’ [Citation.]” (People v. Green (1996) 50 Cal.App.4th 1076, 1084.) “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.]’ ” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143, quoting People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)
Here, at the sentencing hearing, the trial court, defense counsel, and the prosecution all agreed that section 654 applied to both counts 4 (robbery) and 5 (burglary). Nevertheless, when the trial court pronounced its sentence, it sentenced defendant to concurrent terms on counts 4 and 5. The trial court erred.
In this case, defendant’s conviction for kidnapping (count 3) was based on evidence that defendant forced Greta to go to the bank by threatening her with a screwdriver; defendant’s objective was to obtain money from Greta’s bank account. Defendant’s conviction for attempted robbery (count 4) was likewise based on evidence that defendant forced Greta to go to the bank to obtain her money. Defendant’s conviction for burglary (count 5) was based on defendant entering the bank with Greta, with the intent to commit the robbery. During closing argument, the prosecutor emphasized the reasons why the jury should convict defendant of these three counts: Defendant forced Greta to go to the bank with an intent to take Greta’s money from her account.
Therefore, based on the evidence presented by the prosecution and accepted by the jury, defendant engaged in a single course of conduct pursuant to a single objective on counts 3, 4, and 5; defendant forced Greta to go to the bank in order to take Greta’s money. Because the kidnapping, attempted robbery and burglary “were incident to one objective, [defendant] may be punished for any one of such offenses but not for more than one.” (People v. Perez, supra, 23 Cal.3d at p. 551.)
On appeal, the People agree that section 654 bars concurrent sentencing on the burglary count because defendant “committed a burglary when he entered the bank and attempted to commit the underlying intended felony of robbery.”
As to the robbery count, however, the People argue that “[t]he record demonstrates [defendant] engaged in a divisible course of conduct when he kidnaped [sic] and attempted to rob Greta.” In support, the People argue that defendant had a separate intent when kidnapping Greta because he told her that he had “something” for her before and during their ride to the bank. Therefore, the People argue that not only did defendant kidnap Greta to get money from her, he “had a separate criminal objective to commit further acts of domestic violence, or worse, on Greta.” We disagree with the People’s analysis. Here, as provided ante, it is clear that defendant’s objective in kidnapping Greta was to get money from her. There is no evidence to support the People’s argument defendant’s objective in kidnapping Greta was to inflict further harm on her. There was ample evidence to show that defendant did and could have inflicted harm on Greta without kidnapping her. Therefore, the sentence on the attempted robbery count should have been stayed under section 654.
B. Section 12022, Subdivision (b)(1), Enhancement
Defendant contends, and the People agree, that the deadly weapon use enhancement under section 12022, subdivision (b)(1), as to count 1 (assault with a deadly weapon under § 245, subd. (a)(1)), should be stricken.
“[S]ection 12022, subdivision (b) precludes the enhancement where . . . use of a deadly weapon is an element of the offense of which the accused is convicted.” (People v. McGee (1993) 15 Cal.App.4th 107, 110.)
In People v. Summersville (1995) 34 Cal.App.4th 1062, the court specifically held that “[a] conviction under section 245, subdivision (a)(1) cannot be enhanced pursuant to section 12022, subdivision (b).” (Id. at p. 1070.)
Here, defendant was convicted of violating section 245, subdivision (a)(1), by stabbing Collins with a screwdriver. As the jury’s verdict demonstrates, section 245, subdivision (a)(1), can be violated not only by using a deadly weapon, but also by using force likely to produce great bodily injury. When the deadly weapon use is the force that produced great bodily injury, the enhancement cannot apply. (People v. Summersville, supra, 34 Cal.App.4th at p. 1070; People v. McGee, supra, 15 Cal.App.4th at p. 115.)
Accordingly, the personal use of a deadly weapon enhancement under section 12022, subdivision (b), was improperly imposed as to count 1, and must be stricken.
III
DISPOSITION
The sentence is modified (1) to stay defendant’s sentences for counts 4 and 5 under section 654; and (2) to strike the personal use of a deadly weapon enhancement under section 12022, as to count 1. 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: McKINSTER Acting P. J., KING J.