Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. Nos. CC772182, BB728349
BAMATTRE-MANOUKIAN, ACTING P.J.
In case No. BB728349, defendant Jair Hernandez was convicted by no contest plea of vehicle theft (Veh. Code, § 10851, subd. (a)), and he admitted having served a prior prison term. (Pen. Code, § 667.5, subd. (b).) In case No. CC772182, defendant was convicted by no contest plea of inflicting corporal injury on his spouse (§ 273.5, subd. (a)), and making criminal threats (§ 422), and he admitted having a prior serious felony conviction that also qualified as a strike (§§ 667, subds. (a), (b)-(i), 1170.12), and having served two prior prison terms. The trial court denied defendant’s Romero motion, sentenced defendant to a total of ten years eight months in prison for both cases, imposed a total of $4,300 in restitution fines under section 1202.4, subdivision (b), and imposed a 10-year protective order under section 1203.097.
All further unspecified statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, defendant contends that (1) the court erroneously imposed a one-year term for one of the prison priors (§ 667.5, subd. (b)); (2) imposition of the concurrent term and restitution fine on the criminal threats count violated section 654; and (3) the 10-year protective order was not authorized by section 1203.097 and, therefore, must be stricken. For the reasons we explain, we will order the judgment in case No. CC772182 modified by staying the sentence on the criminal threats count, reducing the restitution fine, and specifying that the protective order was imposed under section 273.5, subdivision (i). As we find no other error, we will affirm the judgment as so modified.
BACKGROUND
“On May 4, 2007, at approximately 4:00 PM, officers of the San Jose Police Department were dispatched to [an address on] Almaden Rd. Upon arrival they met with the victim, twenty-nine year old Anna Elvia Diaz. [¶] Diaz reported she had been married to the defendant for approximately two years, but had been with him for a total of five years and they shared one child.... She reported prior to this date the defendant had physically assaulted her between six to eight times. [¶] Diaz stated she had not reported any of the prior incidences of abuse to the police because none had been as serious as the present assault. On the present day the defendant arrived home, closed all the windows and curtains of the apartment, and began accusing her of cheating on him. She denied the accusations and the defendant proceeded to punch her in the face. She reported every time she denied cheating on the defendant he would hit her again. [¶] Diaz stated the defendant punched her approximately six times on the face with a closed fist, kicked her three times, twice on her left shin area and once on her vaginal area. During the assault the defendant continuously accused her of cheating on him and told her he was going to kill her. She indicated she believed the defendant was going to kill her, as he threatened to kill her before but would always apologize immediately afterward. She proceeded to run out of the apartment, into the parking lot, and got the attention of the reporting party. [¶] Diaz stated that the defendant fled in an unknown direction. [¶] The victim sustained a 3/4” laceration on the bridge of her nose; she had heavy bruising around her right eye, a large bump on the left side of her forehead, two small cuts on both her shins, numerous bruising on both her shins, which appeared to be various stages of development, and suffered from severe pain from the assault. She was subsequently transported to Valley Medical Center and received morphine to assist with the pain from her injuries. [¶] The defendant was not located at the scene and subsequently a warrant was issued for his arrest.”
Although the parties stipulated that the factual basis underlying defendant’s pleas in case No. CC772182 was the police report, that report is not in the record on appeal. Therefore, the facts are taken from the probation report.
On the morning of May 20, 2007, defendant called Rene DeAnda, a distant relative, and asked if he could borrow DeAnda’s car for a few days. DeAnda agreed, but he said that he needed the car back in one week. Defendant picked up the car but did not return it within a week. DeAnda tried to call defendant numerous times and eventually discovered that defendant’s phone had been disconnected. DeAnda reported to the police on July 12, 2007, that his car had been stolen. Another warrant issued for defendant’s arrest. He was subsequently arrested in Utah on an unrelated matter and returned to Santa Clara County.
Defendant was charged by felony complaint filed July 23, 2007, in case No. BB728349, with one count of vehicle theft. (Veh. Code, § 10851, subd. (a).) The complaint further alleged that defendant had served a prior prison term (§ 667.5, subd. (b)). On October 31, 2008, defendant pleaded no contest to the offense and admitted the alleged prior.
The reporter’s transcript of defendant’s change of plea in case No. BB728349 is not part of the record on appeal.
Defendant was charged by information filed May 7, 2009, in case No. CC772182, with inflicting corporal injury on his spouse (§ 273.5, subd. (a); count 1), and making criminal threats (§ 422; count 2). The information further alleged that defendant had a prior serious felony, a robbery conviction, that also qualified as a strike (§§ 667, subds. (a), (b)-(i), 1170.12), and had served two prior prison terms (§ 667.5, subd. (b)). On June 25, 2009, defendant entered a negotiated plea of no contest to both counts and admitted all the alleged priors. Conditions of the plea were that he receive a sentence of no more than 10 years, and that the prosecutor not object to a concurrent sentence in case No. BB728349.
The probation report recommended that the court sentence defendant consecutively on the two matters and that he receive a total term of 10 years eight months. On October 9, 2009, defendant filed a request in case No. CC772182 that the court either reduce the two offenses to misdemeanors pursuant to section 17, or strike the strike prior under section 1385 and Romero. The People filed opposition to the motion on October 30, 2009. On November 12, 2009, the court denied defendant’s request to reduce the offenses to misdemeanors or to strike the strike. It then sentenced defendant to prison for 10 years in case No. CC772182, and a consecutive term of eight months in case No. BB728349. The 10-year sentence in case No. CC772182 consists of the lower term of four years (double the minimum term of two years) on count 1 (§ 273.5, subd. (a)), a concurrent term of four years (double the middle term of two years) on count 2 (§ 422), a consecutive term of five years for the prior serious felony (§ 667, subd. (a)), and a consecutive term of one year for one prison prior (§ 667.5, subd. (b)). The court stayed the sentence on the second prison prior. The court also imposed a $4,000 restitution fine pursuant to section 1202.4, subdivision (b), and a 10-year protective order pursuant to section 1203.097 in case No. CC772182, and a $300 restitution fine under section 1202.4 in case No. BB728349.
DISCUSSION
The Prior Prison Term Enhancement
The information in case No. CC772182 alleged two prison priors. (§ 667.5, subd. (b).) One was for a conviction for recklessly evading a peace officer (Veh. Code, § 2800.2, subd. (a)), and the other was for a conviction for robbery (§§ 211, 212.5, subd. (c)). Defendant admitted both prison priors. The probation report recommended that the court impose a one-year term for one prison prior in case No. CC772182, and that the term for the second prison prior be stayed. Exhibits attached to the People’s opposition to defendant’s Romero motion indicated that defendant was sentenced on January 14, 2003, to two years in prison for second degree robbery, and on January 30, 2003, in a separate case, to one year four months in prison for reckless evasion, with the sentence to run concurrent to the sentence on the robbery conviction. Defendant was “rec’d” by the Department of Corrections on February 12, 2003, on both cases, and released on parole on June 1, 2004.
At the sentencing hearing, the probation officer informed the court that she was recommending that the one-year term be imposed on the “reckless evading prison prior, ” and that the term for the “robbery prison prior” be stayed. She stated that the “robbery prison prior” was the same offense alleged in the five-year serious felony enhancement. (§ 667, subd. (a).) When the court imposed sentence, it stated that its sentence was as recommended by the probation officer.
Defendant now contends that the “erroneous imposition of an unauthorized one-year section 667.5, subdivision (b) prior prison term enhancement... violated the Sixth and Fourteenth Amendments.” He argues that the issue is cognizable for various reasons, including that “the imposition of an unlawful prior prison term enhancement is an unauthorized sentence that constitutes an exception to the preservation requirement.” The Attorney General contends that defendant’s contention “fails on the merits because the trial court’s sentence was correct.”
In People v. Jones (1993) 5 Cal.4th 1142 (Jones), the trial court imposed an enhancement under section 667, subdivision (a), and under section 667.5, subdivision (b), based upon one prior felony offense of kidnapping. (Id. at p. 1145.) Our Supreme Court determined in Jones that “in enacting what is now subdivision (a) of section 667, the voters did not intend that a defendant’s sentence would be enhanced for both a prior conviction (under the new statute) and the resulting prison term (under § 667.5).” (People v. Murphy (2001) 25 Cal.4th 136, 156.) Therefore, the Jones court “construed section 667 to bar the cumulative imposition of both enhancements” (People v. Baird (1995) 12 Cal.4th 126, 134), stating that, “when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.” (Jones, supra, 5 Cal.4th at p. 1150.)
In People Gonzales (1993) 20 Cal.App.4th 1607, the defendant was sentenced to prison in one case, and later the same year the trial court imposed a concurrent prison term in a separate case. Following a subsequent conviction, the trial court imposed and defendant challenged on appeal the one-year enhancement under section 667.5 for the “concurrent prison sentence imposed for two separate crimes, one of which was a serious felony under section 667, subdivision (a).” (Id. at p. 1610.) The appellate court stated, “The question presented, therefore, is does Jones preclude the court from imposing a one-year enhancement under section 667.5 when the prior prison term is based in part on the same case that also is the basis for imposition of a serious prior felony conviction (§ 667, subd. (a)), and based in part on a separate, independent case? We conclude Jones does not preclude imposition of the section 667.5 one-year enhancement for the... prior prison term allegation.” (Gonzales, supra, 20 Cal.App.4th at p. 1610.) “Each case involves a separate crime, which was committed separately and brought and tried separately.... Thus, under the circumstances presented here, imposition of a one-year enhancement for the... prior prison allegation to which Gonzales admitted, does not result in Gonzales improperly suffering two enhancements for [one prior offense]. Neither Jones nor section 654 precludes imposition of the one-year enhancement for the... prior prison term.” (Id. at p. 1611; accord, People v. Sandoval (1994) 30 Cal.App.4th 1288, 1304 (Sandoval).)
Defendant contends that the Gonzales court’s “rationale is not applicable under the unique circumstances of [his] case.” He argues that because the later-imposed sentence was a shorter sentence, it “did not provide an independent and sufficient basis of itself to sustain the prior prison term.” “When [the] later, shorter sentence was subsumed within [the] earlier, longer prison term, the Jones rule governed and the one-year prior prison term must be stricken.” Defendant cites People v. Riel (2001) 22 Cal.4th 1153, 1203, in support of his contention. In Riel, the defendant had suffered two prior felony convictions for which he served one prison term. Because the jury found that defendant had suffered two prison priors (§ 667.5, subd. (b)), the court struck the second prior prison term finding. “[T]he enhancement was for the prison term, not the convictions.” (Riel, supra, 22 Cal.4th at p. 1203.) Riel does not help defendant, as it does not involve the situation involved in Gonzales, Sandoval, and here, where one of the two prior felony convictions on which the prior prison term was imposed was also found to be a prior serious felony within the meaning of section 667, subdivision (a).
A concurrent prison sentence imposed for two separate crimes, brought and tried separately, one of which was a serious felony prior, does not preclude imposition of the one-year enhancement for the prior prison term. (Gonzales, supra, 20 Cal.App.4th at pp. 1610-1611; Sandoval, supra, 30 Cal.App.4th at p. 1304.) The trial court in this case did not erroneously impose a one-year term for the prior prison term enhancement.
Section 654The probation report recommended that the sentences on the two counts in case No. CC772182, inflicting corporal injury and making criminal threats, “run concurrently, as the crimes occurred on the same occasion.” In defendant’s Romero motion in that case, he asserted that “Penal Code §654 applies in this case because [his] intent and objective... was the same for both offenses. (Neal v. State of California (1960) 55 Cal.2d 11.)” The trial court impliedly rejected defendant’s contention when it imposed concurrent terms of four years for the two offenses in the case, and imposed a $4,000 restitution fine under section 1202.4. The $4,000 restitution fine was calculated by using the formula permitted by section 1202.4, subdivision (b): $200 x 2 (the number of felonies) x 10 (the number of years of the sentence imposed for those felonies).
On appeal, defendant contends that “the offenses of infliction of spousal corporal injury and criminal threats [were] committed in an individual, jealous course of conduct with one intent and object, to [intimidate] his assumed unfaithful wife.” He argues that the sentence on count 2 must be stayed and the restitution fine must be reduced to $2,000 ($200 x 1 x 10). The Attorney General contends that neither a stay of the sentence on count 2 nor a reduction in the ordered restitution fine is required by section 654. However, the Attorney General concedes that, if this court concludes that the sentence on count 2 must be stayed, the restitution fine based on that count cannot stand.
“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.” (§ 654, subd. (a).) “[T]he purpose of section 654 ‘is to insure that a defendant’s punishment will be commensurate with his culpability.’ [Citation.]... A person who commits separate, factually distinct, crimes, even with only one ultimate intent and objective, is more culpable than the person who commits only one crime in pursuit of the same intent and objective.” (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) “The test for determining whether section 654 prohibits multiple punishment has long been established: ‘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. Britt (2004) 32 Cal.4th 944, 951-952; see also Neal v. State of California, supra, 55 Cal.2d at p. 19.)
The trial court has broad latitude in determining whether section 654, subdivision (a) applies in a given case because the defendant acted pursuant to a single intent and objective. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) “The resolution of this question is one of fact and the trial court’s finding will be upheld on appeal if it is supported by substantial evidence.” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583; see also People v. Downey (2000) 82 Cal.App.4th 899, 917.) In conducting the substantial evidence analysis, “[w]e must ‘view the evidence in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.]” (People v. McGuire (1993) 14 Cal.App.4th 687, 698; see also People v. Green (1996) 50 Cal.App.4th 1076, 1085.)
Defendant’s infliction of corporal injury on Diaz was not separated by either time or space from his threats to kill her. Defendant responded to Diaz’s repeated denials of being unfaithful by hitting and kicking her and threatening to kill her. Thus, the crimes were committed simultaneously with the objective of terrorizing, or at the very least intimidating, Diaz. (Compare People v. Solis (2001) 90 Cal.App.4th 1002, 1022 (Solis) [separate punishment for arson and criminal threats permitted where defendant set fire to victims’ apartment an hour after leaving several threatening phone messages]; People v. Nubla (1999) 74 Cal.App.4th 719, 731 [separate punishment for assault with a deadly weapon and corporal injury on a spouse permitted where pushing victim onto the bed causing her nose to bleed did not facilitate the pushing of the gun into her mouth and was not incidental to that offense].) In addition, defendant’s threats were not made against multiple victims. (Compare Solis, supra, 90 Cal.App.4th at p. 1009 [defendant’s threats were made to and heard by both residents of the apartment]; People v. Cruz (1995) 38 Cal.App.4th 427, 434 [the victim of the assault with a firearm was not the only victim of the offense of discharging a firearm at an occupied building].) We find that there is not sufficient evidence in the record to support the trial court’s imposition of separate punishment for the two offenses in case No. CC772182. Accordingly, we will order the judgment modified by staying the concurrent term for count 2, the terrorist threats count (§ 422). In addition, as requested by defendant, we will reduce the restitution fine to $2,000. (See People v. Le (2006) 136 Cal.App.4th 925, 933-936.)
The 10-Year Protective Order
At the sentencing hearing, the probation officer requested “on behalf of the victim that the Court order a ten-year protective order. And I would have to find the code to cite that, but it’s pursuant to the domestic violence code. It’s under the general – it’s 1203.097. And I don’t have the subsection but it’s in that area.” After the court imposed the 10-year term in case No. CC772182, the following occurred.
“[THE COURT]: He will also be restricted by a protective order pursuant to what code?”
“[THE PROBATION OFFICER]: 1203.097.
“[DEFENSE COUNSEL]: Your Honor, the defense will be objecting to the imposition of a ten-year order in this matter. This was not expressly requested by the victim in this case. I believe the usual imposition of three years would be appropriate in this matter, especially considering the defendant and the victim will not be living anywhere near each other. And I don’t think anything stands out in this matter to ask for the ten year over the three year.
“[THE PROBATION OFFICER]: And your Honor, if I might respond to that.
“THE COURT: Yes.
“[THE PROBATION OFFICER]: We did have contact with the victim by phone. She did not wish to continue her relationship with the defendant and was in the process of divorcing him. Absent further recommendations or evidence by the victim, a ten-year order certainly appears appropriate. She can always petition the Court to have that lifted if, you know, at some point she wishes to have contact. That’s always her option.
“THE COURT: Because of the seriousness of the attack, it’s my judgment that the ten-year order is clearly appropriate.”
The abstract of judgment states: “DVPO issued exp 11/12/19 pursuant to DV code 1203.097.”
Defendant now contends that the “unauthorized 10-year section 1203.097 protective order must be stricken when defendant was sentenced to state prison and not placed on probation, ” as “[t]hat section pertains to conditions of probation for crimes of domestic violence.” The Attorney General concedes that section 1203.097 “is inapplicable, ” but contends that “although the probation officer cited the wrong statutory provision to the trial court, the protective order is still valid. The court, complying with section 273.5, subdivision (i), properly considered imposing a protective order and found that the seriousness of the offense fully justified a 10-year protective order.”
Section 1203.097, subdivision (a)(2) provides for “[a] criminal court protective order” when a defendant “is granted probation” for any crime of domestic violence. Section 273.5, subdivision (i) provides that, whenever a defendant is convicted under section 273.5, subdivision (a), “the sentencing court shall... consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. This protective order may be issued by the court whether the defendant is sentenced to state prison, county jail, or if imposition of sentence is suspended and the defendant is placed on probation.” (§ 273.5, subd. (i).) We review the trial court’s order granting a protective order under the abuse of discretion standard of review. (Cf. In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495.)
“If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include all of the following: [¶]... [¶] (2) A criminal court protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment, and, if appropriate, containing residency exclusion or stay-away conditions....” (§ 1203.097, subd. (a).)
In this case, defendant did not object generally to the imposition of a protective order. He argued only that a three-year rather than a 10-year protective order was appropriate. A protective order of up to 10 years was authorized by statute in case No. CC772182, as defendant was convicted of violating section 273.5, subdivision (a). (§ 273.5, subd. (i).) Section 273.5, subdivision (i) further provides that the length of the protective order is to be determined by the court based upon the seriousness of the facts before it, the probability of future violations, and the safety of the victim and her immediate family. The facts of this case indicate that defendant not only inflicted corporal injury on his wife, requiring hospital treatment and strong pain medication, but he also threatened to kill her. And he had both hit and threatened his wife a number of times before the incident at issue. The trial court found that, “because of the seriousness of the attack, ” a 10-year protective order was appropriate.
We find that the 10-year protective order was authorized by section 273.5, subdivision (i), and we further find that, on the record before us, the court’s 10-year protective order was not an abuse of discretion. Accordingly, we will order the judgment modified to state that the 10-year protective order was imposed pursuant to section 273.5, subdivision (i), rather than section 1203.097.
DISPOSITION
The judgment is ordered modified by staying the four-year term imposed on count 2 (§ 422) in case No. CC772182, by reducing the restitution fine in that case from $4,000 to $2,000 (§ 1202.4, subd. (b)), and by stating that the 10-year protective order is imposed under section 273.5, subdivision (i), rather than under section 1203.097. As so modified, the judgment is affirmed. The clerk of the superior court shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
WE CONCUR, MIHARA, J., MCADAMS, J.