Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 05F01899, 09F00724.
ROBIE, Acting P. J.
In case No. 05F01899 (2005 case), defendant Christopher Robert Floyd pled no contest to the infliction of corporal injury upon a cohabitant. The court suspended imposition of sentence and granted probation for a term of five years.
In case No. 09F00724 (2009 case), a jury found defendant guilty of felony false imprisonment and making criminal threats. The court found defendant to be in violation of probation in the 2005 case.
The court sentenced defendant to state prison for an aggregate term of four years four months, that is, the midterm of three years for the infliction of corporal injury and consecutive one-third the midterm or eight months each, for both false imprisonment and criminal threats.
Defendant appeals. He contends: (1) the trial court erred in failing to stay sentence (Pen. Code, § 654) on the criminal threats offense; (2) he is entitled to additional presentence custody credits pursuant to the recent amendments; and (3) the trial court erroneously increased the restitution fine in the 2005 case when it sentenced him to state prison. We will order the $600 restitution fine imposed in the 2005 case stricken; the $200 restitution fine originally imposed when the court granted probation remains in force. We reject defendant’s other contentions.
Further statutory references are to the Penal Code.
FACTS
The 2005 Case
In January 2005, defendant and his then-girlfriend, R. B., argued and he hit her on the leg with a lamp. Earlier, he had punched her, put his hand in her mouth, bit her nose, threw her on the ground, and threatened to kill her if she reported the incident to the police. The victim sustained a bruise on her leg and a cut on her nose.
The 2009 Case
About 4:00 a.m. on January 27, 2009, defendant called his then-girlfriend, D. C., on her mobile phone. They had previously argued; he was angry because she had contracted a sexually transmitted disease and she wanted to view his MySpace page. She heard his voice and hung up without answering. Shortly thereafter, she heard someone trying to enter her bedroom through the windows. She grabbed a knife from her dresser and minutes later, someone tried to open her bedroom door. It was locked. Then someone knocked on the bedroom door. She opened the door, still holding the knife. Defendant was there and wanted to talk. She let him in her bedroom. He then borrowed her phone, left the house, made a call and, less than five minutes later, returned to her bedroom. When she tried to leave to go to the bathroom, he pushed her back. He was angry. He ordered her to put the knife on the bed and when she did, he grabbed it. He accused her of cheating on him and hit her with a yardstick about seven times. He then tied up her hands and legs with scarves. He hit her with the yardstick until it broke. He threatened to “burn a bitch that would burn me” and told her she could not leave.
About 6:30 a.m., the victim heard her roommates getting up. Defendant ordered the victim to her car after untying her. He drove them around for about 30 minutes during which he hit her four or five times with his fist. When they saw a police car, defendant grabbed the knife and threatened, “‘Don’t even think about it.’” They stopped at a house under construction for about 30 minutes during which defendant hit her about six more times, choked her, and threatened to stab her in the throat and burn her body in the car.
They left the new construction site and drove to his mother’s house. When she tried to get out, he pulled her back in. He hit her about nine more times with his fist and tried to choke her again. They returned to her house. She planned to call her boss and a friend about not going to work that day. Defendant asked her what her excuse would be. She said she would explain that she was sick. He threw a lighter in her face, saying “‘That’s the wrong answer.’” He repeated this action two more times. Defendant put the knife next to her eye and her lip. He then tied her up with scarves and put a scarf in her mouth. She untied herself and told defendant she wanted to have sex. At trial, she explained that she thought it would “lighten his mood” and she could “get away.” They had sex. She went to the bathroom and texted several friends about what was happening. Defendant fell asleep. She escaped and called the police.
The prosecution presented evidence of prior domestic violence involving R. B. R. B. testified about the attacks described in the 2005 case. She also testified about another argument in October 2004 which escalated to physical violence. Defendant punched her and prevented her from leaving her truck. When they got to a gas station, she followed him into the store after he took her ATM card. He also twisted her arm and stuck a key in her back, trying to force her back to the truck. An employee yelled at him and he left in her truck without her.
A defense witness claimed that she dropped defendant off at D. C.’s house at 4:00 a.m. He told her to wait until he knew whether he was staying. He came out 10 minutes later and had her wait a while longer. He came out again and waved goodbye.
DISCUSSION
I
Application Of Section 654
In imposing consecutive sentences for both false imprisonment and criminal threats, the court found that the evidence “reflect[ed] separate offenses that occurred over a substantial period of time in a single day.” Defendant contends sentence on the criminal threats offense should have been stayed pursuant to section 654, arguing “[w]hile the offenses may have occurred over several hours, they were clearly part of the same criminal objective -- to commit one continuous act of domestic violence.” We reject his contention.
Section 654, subdivision (a), provides, in relevant part, as follows: “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.” The purpose of the foregoing 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.)
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 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. Liu (1996) 46 Cal.App.4th 1119, 1135.)
“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.)
Here, the People claim “[t]he threats were made to terrorize the victim beyond what was necessary to falsely imprison her, ” were independent, and were “gratuitous and unrelated to the objective of imprisoning the victim and keeping her from escaping.” The People point out that defendant had already tied the victim up when he initially threatened to “‘burn a bitch that would burn me.’” Plus, when they were parked at the new house construction, defendant had threatened to stab the victim in the throat and burn her body in the car. The People claim defendant’s acts of holding the victim hostage and threatening her with violence were not parts of an indivisible course of conduct.
Defendant replies that he falsely imprisoned the victim in order to terrorize her and that his conduct occurred during “one long continuous act of domestic violence designed to terrorize the victim.” The defendant wants us to create a new crime of “continuous domestic violence.” He is wrong.
Here, the prosecutor’s theory for false imprisonment was that it occurred “a number of times, ” “in her bedroom, in that car back into the bedroom, tying her up.” The prosecutor also argued the criminal threats occurred on “a number of occasions.” The jury was instructed on unanimity. The court imposed consecutive sentences for false imprisonment and criminal threats, finding the evidence reflected separate offenses that occurred over a substantial period of time.
In order to commit the crime of criminal threats, 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.) For felony false imprisonment, the People must prove that defendant intentionally restrained, confined, or detained a person or caused the person to be restrained, confined, or detained by violence or menace and made the person stay or go somewhere against the person’s will; violence is defined as physical force greater than that required to restrain and menace is defined as a verbal or physical threat of harm, express or implied, and includes the use of a deadly weapon. (§ 236; CALCRIM No. 1240.)
Some of defendant’s threats could be considered a means of committing another offense. However, the same cannot be said for defendant threatening the victim with a knife and saying, “‘[d]on’t even think about it’” when a patrol car was spotted. Here, defendant harbored a separate objective for this criminal threat, avoiding arrest. Substantial evidence at trial supports this additional criminal threat and an implied finding of more than one objective.
Further, defendant falsely imprisoned and threatened the victim in the bedroom, untied her, forced her to her car, drove around, and forced her to remain in the car, again threatening her. Section 654 does not apply to foreclose separate punishment for a violent offense committed after the defendant has had an opportunity to reflect following the prior offenses. That was true in this case. (People v. Trotter (1992) 7 Cal.App.4th 363, 367-368.)
Section 654 does not bar punishment for both false imprisonment and criminal threats.
II
Presentence Custody Credit
In sentencing defendant to state prison, the court awarded presentence custody credit as follows: in the 2005 case -- 44 days; and in the 2009 case -- 342 days. Defendant contends he is entitled to more conduct credit under the recent amendments to section 4019. We disagree.
Defendant is among the prisoners excepted from the additional accrual of credit as he was committed for a serious felony (criminal threats). (§§ 1192.7, subd. (c)(38), 4019, former subds. (b), (c) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], § 2933 [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].) Consequently, defendant is not entitled to additional conduct credit.
III
Restitution Issue
In initially granting probation in the 2005 case, the court imposed a $200 restitution fine. In later sentencing defendant to prison, the court imposed a $600 restitution fine in the 2005 case. Defendant contends and the People concede that the restitution fine must be reduced to $200. We conclude that the first restitution fine survived the revocation of probation and the trial court had no authority to impose the second restitution fine. (People v. Chambers (1998) 65 Cal.App.4th 819, 821-823.)
Defendant also contended that the court erroneously imposed a court security fee. In his reply brief, he withdrew his request for modification of the court security fee.
DISPOSITION
The judgment is modified, striking the $600 restitution fine and corresponding $600 parole revocation restitution fine, changing both fines to $200 in the 2005 case. 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: BUTZ, J., DUARTE, J.