Opinion
NOT TO BE PUBLISHED.
APPEAL from the Superior Court of Riverside County, Super.Ct.No. INF052751, B.J. Bjork, Judge.
Charlotte E. Costan, 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, Senior Assistant Attorney General, David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
A jury found defendant guilty of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a)) (count 1); corporal injury to a spouse resulting in a traumatic condition (§ 273.5, subd. (a)) (count 2); assault with a deadly weapon (§ 245, subd. (a)(1)) (count 3); two counts of felony child abuse likely to produce great bodily injury or death (§ 273a, subd. (a)) (counts 4 & 5); and maliciously tampering with a telephone line (§ 591) (count 6). As to counts 1, 2, and 3, the jury found true that defendant had personally inflicted great bodily injury under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e). In addition, as to counts 1, 2, 4, and 5, the jury found true that defendant had used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1). Defendant was sentenced to a total term of 20 years 4 months to life with credit for time served.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) there was insufficient evidence to support the jury’s finding that the attempted murder was deliberate and premeditated; (2) there was insufficient evidence to sustain the jury’s verdict on count 6; (3) the prosecutor’s argument and the jury instruction concerning count 6 misled the jury; (4) in the alternative, punishment on count 6 should have been stayed pursuant to section 654; and (5) his sentence on count 2, as well as the enhancement allegations attached to that count, should have been stayed pursuant to section 654, as the attempted murder and spousal injury were pursuant to a single objective. The People contend that the court’s minute order and abstract of judgments must be corrected to reflect the oral pronouncement of judgment. We agree with the parties that defendant’s sentence on count 2 should have been stayed pursuant to section 654; however, we reject defendant’s remaining contentions.
Because we remand the matter for resentencing, the People’s contention is moot. However, we remind the trial court that its minute order and the abstract of judgment must conform to the court’s oral pronouncement of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471.
I
FACTUAL AND PROCEDURAL BACKGROUND
Esther Z. and defendant were married for 11 years and lived in “free union” for about 11 years. They lived in Mexico for most of those years and had two children together, Maria and Alejandro.
Defendant was a very jealous man who accused Esther of being with other men. Defendant repeatedly threatened her, hit her, and told her he was going to kill her in front of their children. About a year and a half prior to the instant offenses, Esther left defendant and came to the United States after defendant threatened to cut her throat with a knife. Esther did not call the police in Mexico out of fear of defendant.
In October or November 2005, defendant unexpectedly showed up at Esther’s apartment in the City of Coachella. He said he was a changed man and would not bother her if she allowed him to see their children. After defendant pleaded with her, Esther agreed that he could stay with her for a brief time.
After a short period, defendant insisted that he and Esther get back together and that she abandon their children and move back to Mexico. Esther refused, and defendant became jealous, accusing her of seeing other men, which she denied. Esther told defendant that she wanted a divorce and that he had to move out of the apartment. Esther was concerned because defendant was frightening their children by telling them that he was going to cut up and kill their mother. Defendant eventually agreed to leave.
On November 29, 2005, during the day, defendant and Esther began arguing over defendant wanting to stay longer in Esther’s apartment. Defendant asked to stay longer, but Esther told him he had to leave. That evening, Esther went to bed between 9:00 and 10:00 p.m.; Maria, who was six years old at the time, slept in the same bed as Esther. Alejandro, who was 10 years old at the time, slept in another bed in the same room. The two telephones (one in the bedroom and one in the living room) were plugged into the wall when Esther and the children went to bed.
Around 4:00 a.m. the following morning, Esther was awakened by a pain on the right side of her throat. Defendant was on top of her, covering her mouth with one hand and stabbing her throat with a knife from the kitchen in the other hand. Esther began to struggle with defendant and grabbed the knife as defendant tried to put it deeper into her throat. Maria awoke, grabbed defendant by the hair, and tried to push him off Esther. Esther cut her hand on the knife. She was bleeding a great deal, and her blood splattered on the bedding.
Esther eventually succeeded in pulling the knife out of her neck and pushing defendant away. After she unlocked the bedroom door, which had been unlocked when Esther went to bed, Esther took both children as they were crying and screaming into the living room. Esther picked up the telephone to call the police. However, the telephone had been unplugged from the wall. Esther sent the children, who had no physical injuries, outside for help. Esther plugged the telephone back into the wall and called 911.
Defendant looked out the bedroom and told Esther, “You see? I told you.” Esther then ran outside, where a neighbor assisted her. Defendant did not follow her.
Deputies Damen Butvidas, Rigoberto Garcia, Juan Arredondo, and Anthony Russo were dispatched to the scene. When they arrived, Esther had a bloodstained towel wrapped around her neck. The children were with her. Esther told the deputies that her husband had stabbed her in the throat and that he was still inside the apartment.
Maria and Alejandro were crying, breathing rapidly, and looking around nervously. They stated that they were crying because their father had just stabbed their mother in the neck.
The parties stipulated that, if called as a witness, Maria would have testified to the following: “I woke up and saw my daddy sticking a knife in my mommy’s throat. I helped get him off my mommy by pulling at his hair. I did not unplug the bedroom or living room phone.” The parties also stipulated that, if called as a witness, Alejandro would have testified, “I did not unplug the bedroom or living room phone.”
The deputies saw a blood trail leading from the building’s hallway to the front door of Esther’s apartment. They entered the apartment and followed a trail of blood from the front door to the bedroom. The deputies noted a large amount of blood on the bedroom floor, on Esther’s pillows, on the two mattresses in the bedroom, and on a blanket. The telephone line in the bedroom had been disconnected from its base.
The deputies found defendant in the bathroom, kneeling in front of the toilet. Defendant’s wrists were cut and bleeding. There was blood all over the bathroom. A knife blade was resting on top of a mop next to the toilet. Defendant was handcuffed and taken into the living room.
Defendant and Esther were transported to a hospital. Due to her life-threatening injuries, Esther was transported to the Desert Regional trauma center and treated there. Esther was not able to work for two or three months due to her substantial injuries. Defendant’s injuries were found to be not life threatening, and he was treated for two lacerations on his wrists.
At the hospital, Deputy Butvidas interviewed defendant in Spanish. Deputy Arredondo, who was also fluent in Spanish, was present during the interview. After being advised of and waiving his constitutional rights, defendant admitted to trying to kill his wife. He explained that after Esther had left him, he tracked her down in Coachella to try to resume their relationship and that he had moved in with Esther about a month prior to the incident. Defendant described how they argued, how Esther told him to leave, and how he asked to stay one more night.
Defendant also explained that after Esther had gone to bed and while he was packing his things, defendant contemplated killing Esther and himself because he did not want Esther seeing another man and believed that she was cheating on him. Defendant then went to sleep on the floor between Esther’s and Alejandro’s beds and awoke between 2:00 and 3:00 a.m., deciding at that time to kill his wife. Sometime after 4:00 a.m., he went into the kitchen, grabbed a knife, and returned to the bedroom, where he reflected on whether he should kill Esther. He eventually decided to follow through with the killing and proceeded to stab Esther.
Defendant described how he pushed the knife with his right hand into Esther’s throat, moving it from side to side, after he had placed his right knee on the bed and held Esther’s head with his left hand. Defendant further told the deputies that when Esther awoke, they struggled over the knife. He eventually lost control of the knife after it broke in the struggle. He admitted that his daughter was in the bed with his wife, and his son was in another bed in the room during the incident. After Esther and the children left the bedroom, defendant stated that he picked up the blade of the knife and went into the bathroom where he cut his wrists. He stated that he had not ingested any drugs or alcohol and claimed that the children probably unplugged the telephones from the wall.
Deputy Butvi das also interviewed Esther. She told the deputy that she had left defendant a year and a half earlier because he had an alcohol problem and was abusive. She came to America so she could get a job and take care of the children. She then described how defendant attempted to kill her and how she tried to call 911 but the phone cable had been disconnected.
II
DISCUSSION
A. Sufficiency of the Evidence for Premeditated Attempted Murder
Defendant contends there was insufficient evidence to support the jury’s finding that the attempted murder was committed with deliberation and premeditation. Rather, he maintains the attempted murder was the result of “frustration, jealousy, and anger over [defendant’s] conclusion that his wife wanted a divorce because she was seeing another man,” and thus his conviction should be reduced to simple attempted murder or attempted voluntary manslaughter. Because we find that substantial evidence supports the conviction, we reject the request.
Our review of any claim of insufficiency of the evidence is limited. “‘“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.”’” (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) The same standard of review applies when a conviction rests primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124 (Perez).)
“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]’” (People v. Thomas (1992) 2 Cal.4th 489, 514.) Reversal is warranted only where it clearly appears that “upon no hypothesis whatever is there sufficient substantial evidence” to support the conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.)
Given this court’s limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain his conviction for premeditated attempted murder. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 326 [99 S.Ct. 2780, 61 L.Ed.2d 560]; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In determining whether substantial evidence exists, “we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.” (People v. Cortes (1999) 71 Cal.App.4th 62, 71.) “Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’” (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) “Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’ [Citation.] . . . Express malice requires a showing that the assailant ‘“‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.’ [Citation.]”’” (People v. Smith (2005) 37 Cal.4th 733, 739.)
An unlawful “willful, deliberate, and premeditated [attempted] killing” is attempted murder in the first degree. (§ 189.) “‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
In determining whether evidence is sufficient to support a finding that a killing or attempted killing was willful, deliberate, and premeditated, reviewing courts may consider evidence of prior planning, motive, and whether the manner of killing shows a preconceived design to take the victim’s life. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) Such evidence need not be present in some special combination or be accorded a particular weight, nor is the list exhaustive. (People v. Pride (1992) 3 Cal.4th 195, 247; Perez, supra, 2 Cal.4th at p. 1125; People v. Garcia (2000) 78 Cal.App.4th 1422, 1427.) Rather, they serve as an aid to assess whether the killing or attempted killing was the result of preexisting reflection. (Perez, at p. 1125.)
Generally, it must be shown that the killing or attempted killing resulted from a preexisting reflection, rather than an unconsidered and rash impulse. (People v. Hughes (2002) 27 Cal.4th 287, 342.) But “‘[t]he process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .” [Citations.]’ [Citation.]” (People v. Koontz, supra, 27 Cal.4th at p. 1080.)
Here, there was more than overwhelming evidence to support the jury’s finding that the attempted murder was deliberate and premeditated. Defendant’s motive for attempting to kill Esther was apparent. As conceded by defendant, he was motivated by “frustration, jealousy, and anger” stemming from his suspicions that Esther was seeing another man. Defendant also expressed this motive to the deputies who interviewed him.
There was also substantial evidence of planning. Defendant armed himself in advance of the attempted murder by retrieving a knife from the kitchen before returning to the bedroom to stab Esther with it. In addition, as defendant informed the deputies, prior to stabbing Esther, he saw his daughter lying next to her, looked at her for a couple of seconds, and thought “should I or shouldn’t I[?]” He also admitted that he had contemplated killing Esther the night before the stabbing while he was packing his bags and decided to kill her between 2:00 and 3:00 a.m. -- one or two hours before the 4:00 a.m. stabbing. Hence, defendant contemplated and reflected whether he should stab Esther before actually proceeding to stab Esther. Substantial evidence showed that the attempted killing was the result of a careful weighing of considerations and was thought of in advance. Deliberate and premeditated murder arises out of a cold, calculated judgment, rather than a rash impulse. (People v. Cole (2004) 33 Cal.4th 1158, 1224.)
The manner of the attempted killing also indicated that the attempted killing was the product of reflection. Defendant carefully positioned himself on the bed for the stabbing and held Esther’s head with one hand before stabbing her with the other hand. In addition, he selected to stab one of the most vulnerable and potentially fatal parts of the human body -- the neck and throat area. Defendant then, with a single, precise stab, inserted the knife into Esther’s neck and moved the knife from side to side, completely severing the jugular vein. The manner or method alone, if particularly strong, may suffice to support a conviction for deliberate and premeditated murder. (See People v. Memro (1995) 11 Cal.4th 786, 863-864; People v. Davis (1995) 10 Cal.4th 463, 510.)
Defendant’s contention that “[t]he stabbing was a spur of the moment decision” or as a result of heat of passion is belied by the record. As noted above, the record amply supports the jury’s finding that the attempted murder was a result of careful weighing of considerations (deliberate) and thought of in advance (premeditated). (People v. Cole, supra, 33 Cal.4th at p. 1224.)
Additionally, there was no evidence of heat of passion or that the stabbing was committed upon sudden quarrel. The factor that distinguishes the heat of passion form of voluntary manslaughter from murder or attempted murder is provocation. “The provocation . . . must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim.” (People v. Lee (1999) 20 Cal.4th 47, 59.) The provocation must also “cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] ‘Heat of passion arises when “at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.”’ [Citation.]” (Ibid., italics added.)
Furthermore, where “‘sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter . . . .’” (People v. Breverman (1998) 19 Cal.4th 142, 163.) “Heat of passion may not be based upon revenge.” (People v. Burnett (1993) 12 Cal.App.4th 469, 478.) “[R]evenge does not qualify as a passion that will reduce a killing to manslaughter.” (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704.)
In the instant matter, there was absolutely no provocation by Esther. In fact, Esther was asleep when defendant stabbed her and had been sleeping for six or seven hours. Esther testified that she did not have another boyfriend and that she had left defendant due to his repeated abuse of her. The evidence clearly showed that defendant was simply motivated by his longstanding belief or suspicions that Esther was seeing other men.
Defendant asks us to find analogous the situations in People v. Borchers (1958) 50 Cal.2d 321 and People v. Berry (1976) 18 Cal.3d 509. As defendant concedes, both cases involved provocation generated by “a series of events over a considerable period of time . . . .” (Borchers, at p. 328.) In Berry, the victim, the defendant’s wife, engaged in a two-week period of provacatory conduct, including taunting the defendant with her infidelity while they were engaged in sexual activity. (Berry, at p. 513.) A psychiatrist gave expert testimony that the effect of the victim’s conduct was to provoke the defendant to a state of “uncontrollable rage,” rendering him “completely under the sway of passion.” (Id. at p. 514.) In Borchers, the appellate court upheld the trial court’s reduction of a jury’s verdict from second degree murder to voluntary manslaughter where the evidence included the victim’s infidelity and transfers of the defendant’s money to her lover. The killing occurred immediately after the victim solicited the defendant to shoot her, her child, and himself and pointed a gun at the defendant and herself. (Borchers, at pp. 326-328.)
The record below reveals facts substantially dissimilar from those in Berry or Borchers. Esther testified that she was not seeing other men, but rather that defendant insinuated that she was seeing other men. There was absolutely no evidence that Esther was seeing other men or that she was not getting back together with defendant because of another man. Nothing suggests that Esther embarked on a series of deliberate actions designed to provoke a passionate response. Such evidence as there was suggests that, to the contrary, she attempted to avoid antagonizing defendant by leaving him; attempting to stay away from him; and, on the day in question, asking him to immediately leave her apartment. Moreover, in both Borchers and Berry, the defendants testified to their mental state, and the Berry court found it “significant that both defendant and [the psychiatrist] testified that the former was in the heat of passion under an uncontrollable rage when he killed [his wife].” (People v. Berry, supra, 18 Cal.3d at pp. 515-516.) Here, in contrast, defendant neither testified nor presented expert psychiatric testimony as to his mental state. In addition, this case presents no egregious provocations, either as extended buildup to the attempted murder or as the immediate impetus for it.
Contrary to defendant’s assertions, the facts here form a compelling case for deliberation and premeditation and certainly provide substantial evidence to support the first degree attempted murder conviction.
B. Sufficiency of the Evidence for Maliciously Removing or Tampering With a Telephone Line
The jury found defendant guilty of violating section 591 (maliciously removing or tampering with a telephone line). Section 591 provides, in pertinent part: “A person who unlawfully and maliciously takes down, removes, injures, or obstructs any line of telegraph [or] telephone . . . or severs any wire thereof . . . is punishable by imprisonment in the state prison, or by a fine not exceeding five hundred dollars ($500), or by imprisonment in the county jail not exceeding one year.”
To be guilty of violating section 591, it is enough to simply tamper with a telephone in such a way as to preclude its use for receiving or placing calls. (People v. Kreiling (1968) 259 Cal.App.2d 699, 704 (Kreiling).) The telephone or telephone equipment need not belong to the telecommunications provider. Disabling a privately owned telephone can violate section 591. (People v. Tafoya (2001) 92 Cal.App.4th 220, 227 (Tafoya).) Indeed, one may violate the statute by disabling one’s own telephone so long as one acts “‘unlawfully and maliciously’” in doing so. (People v. McElroy (2005) 126 Cal.App.4th 874, 883.)
Defendant contends the mere unplugging of the telephones was insufficient to support his conviction for violating section 591 because the telephones or the telephone lines were not damaged, and Esther was able to plug the living room telephone back in and call 911. Defendant is wrong.
In Kreiling, the Second Appellate District explained a violation of section 591 “encompasses conduct by which the transmission of telephone and telegraph messages is interrupted by any of the enunciated methods. One who tampers with a telephone instrument in such way as to preclude its use for receiving or placing calls ‘obstructs . . . any line of . . . telephone . . . or apparatus connected therewith’ as effectively as if he physically severed the telephone line.” (Kreiling, supra, 259 Cal.App.2d at p. 704.)
In Tafoya, we concluded a defendant violated section 591 when he removed the battery from a cordless telephone. We rejected the defendant’s challenge “that section 591 requires some kind of damage which completely prevents access to the telephone line.” (Tafoya, supra, 92 Cal.App.4that p. 227.) It was sufficient that the defendant blocked the victim’s ability to use the telephone. (Ibid.)
Here, substantial evidence supports defendant’s conviction for violating section 591. Defendant “unlawfully and maliciously” disconnected the telephone lines in Esther’s bedroom and living room, thereby obstructing the telephones by precluding their use for receiving or placing calls. Defendant’s conduct is legally indistinguishable from removing the battery from a telephone, ripping the wires out of the wall, or cutting them. The result of these three actions is the same: the telephone cannot be used to make a telephone call. The conviction was proper.
In a related claim, defendant argues that the prosecutor’s argument misled the jury because “it totally ignored the critical element of ‘unlawfully’ and ‘maliciously.’” To support his position, he states that “[t]he prosecutor argued that all defendant had to do to violate the statute was ‘unhook[] a telephone from a line or wall.’” Defendant’s contention is belied by the record. Concerning the violation of section 591, the prosecutor argued as follows: “Finally, we have Count VI, phone tampering. What this essentially boils down to is the defendant unlawfully unhooked a telephone from a line or wall -- and this is paraphrasing. You’ll get the instruction -- and the defendant did so maliciously.” (Italics added.)
Again, in a related claim, without citation to authority, defendant also asserts that the instruction for violating on section 591 was improper because it was “[t]edious” and contained “[m]ostly [i]rrelevant” theories of phone tampering stated in the disjunctive.
The jury here was instructed pursuant to Judicial Council of California Criminal Jury Instructions 2902 as follows: “The defendant is charged in Count VI with taking down or removing or damaging or obstructing, severing a telephone line. [¶] To prove that the defendant is guilty of this crime, the People must prove that: The defendant willfully took down, or removed, or damaged, or obstructed a part of a telephone line or mechanical equipment connected to the line; and the defendant did so maliciously. [¶] Someone acts maliciously when he intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else. [¶] As used here, mechanical equipment includes a telephone.”
As given by the trial court, the jury instruction accurately tracked the language of section 591. Defendant cannot identify, and we cannot find, anything incorrect in the instruction.
C. Section 654
Defendant was sentenced to state prison as follows: (1) an indeterminate life sentence on count 1 (attempted first degree murder) plus an additional five years for the great bodily injury enhancement attached to that count, plus an additional one year for the weapon use enhancement attached to that count; (2) the upper term of four years on count 2, plus five years for the great bodily injury enhancement attached to that count, plus one year for the weapon use enhancement attached to that count; (3) 16 months for each of the felony child abuse convictions (counts 4 and 5) plus four months for the weapon enhancements attached to each of the child abuse convictions; and (4) eight months for count 6 (tampering with a telephone line). The court stayed imposition of sentence on count 3 (assault with a deadly weapon) and the remaining enhancements pursuant to section 654.
Defendant contends that section 654 bars separate punishment for the telephone tampering conviction (count 6) and for corporal injury on a spouse (count 2). We agree with the parties that count 2 and the enhancements attached to that count should have been stayed but reject defendant’s remaining claim that his sentence on count 6 should have been stayed pursuant to section 654.
Section 654, subdivision (a) provides in pertinent part: “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.” Section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; see also People v. Centers (1999) 73 Cal.App.4th 84, 98; People v. Akins (1997) 56 Cal.App.4th 331, 338-339; People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) “The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
“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.” (Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal).) But, “[i]f [a defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished 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. Beamon (1973) 8 Cal.3d 625, 639.)
“The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.” (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312.) The court’s findings may be either express or implied from the court’s ruling. (See People v. Blake (1998) 68 Cal.App.4th 509, 512.)
1. Count 6
Defendant alleges the court erred by imposing separate sentences for attempted murder (count 1) and eight months for tampering a telephone line (count 6). He argues the eight-month sentence was improper under section 654 and must be stayed, because both crimes arose from the same criminal objective -- to complete the killing. The People counter that defendant’s objective in removing the telephone lines from the wall was to render the telephone inoperable and deny his wife and children the ability to call for help and that it was not necessary to unplug the phone lines to commit the other offenses.
We agree with the People that the act of removing the telephone lines was not the means of committing the attempted murder or the other offenses against Esther and the children. And the other acts of attempting to kill Esther, inflict injury on her, or assault her or to place the children at risk of great bodily injury or death was not the means of removing the telephone lines. The acts of attempted murder and removing a telephone line were separate, divisible acts committed by defendant. Each act had a slightly different criminal purpose, each act formed the basis of a separate offense, and each act merited imposition of a separate punishment.
Defendant’s reliance on People v. Hopkins (1975) 44 Cal.App.3d 669 is inapposite. In that case, the defendant and an accomplice forced their way into the apartment of an 89-year-old woman. They demanded money and liquor and beat the woman for an hour until she told them where she kept her money. They took the money from her purse, tied her up with a telephone cord they yanked from the wall, and struck her in the face as they escaped. (Id. at p. 672.) Applying the Neal “intent and objective of the actor” test, the court held that the three offenses -- burglary, robbery, and the malicious injury to telephone equipment -- were part of an “indivisible transaction incidental to but one objective, the robbery of Mrs. Turner.” (Hopkins, at p. 677.)
This case is distinguishable from Hopkins because rather than pursuing one single objective, defendant herein was engaged in separate acts and was pursuing two different objectives when he attempted to kill Esther and when he removed her telephone lines. Additionally, as noted by the People, the act of tampering with the telephone lines placed Esther and the children at additional risk above and beyond the stabbing.
Defendant also contends that he was entitled to a jury trial on the question of whether he had multiple criminal objectives. We reject defendant’s argument that Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) ___ U.S. __ [127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham) require a section 654 determination to be made by the jury.
In People v. Cleveland (2001) 87 Cal.App.4th 263, 270 (Cleveland), the court held that Apprendi did not require a jury to make determinations as to the application of section 654. Though in People v. Black (2005) 35 Cal.4th 1238, 1264 (Black I) the application of Apprendi to section 654 was not at issue, the California Supreme Court implicitly affirmed the court’s holding in Cleveland. Moreover, although the United States Supreme Court required the California Supreme Court to reassess Black I’s holding with respect to consecutive sentences in light of Cunningham, People v. Black (2007) 41 Cal.4th 799 (Black II) reaffirmed Black I and in so doing effectively left in place Black I’s tacit endorsement of Cleveland.
In Black II, supra, 41 Cal.4th 799, our Supreme Court concluded that nothing in the United States Supreme Court’s opinion in Cunningham entitled a criminal defendant to have the facts underlying the decision to impose consecutive terms determined by a jury. (Black II, supra, 41Cal.4th at p. 821.) The court equated consecutive sentences with the maximum sentence for an offense. Therefore, the court reasoned, the jury’s verdict finding the defendant guilty of two or more crimes was enough, by itself, to authorize consecutive sentences for each offense. Whether the defendant actually should serve consecutive sentences is a “‘sentencing decision[ ] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ . . . .” (Id. at p. 823, quoting from Black I, supra, 35 Cal.4th 1238, 1264.) In view of Black II, we reject the claim concerning the imposition of consecutive sentences.
The trial court properly sentenced defendant to a separate, unstayed sentence for count 6.
2. Count 2
Defendant next contends, and the People correctly concede, that defendant’s sentence on count 2 (corporal injury to a spouse) and the enhancements attached to that count should have been stayed pursuant to section 654, as his single objective was to kill Esther. We also agree.
The evidence showed that the only corporal injury inflicted on Esther was the stab to the neck, which was the same act which constituted the attempted murder. Both crimes were committed with a single objective of killing Esther. The record reveals no additional acts which could have constituted a separate corporal injury offense. Accordingly, section 654 barred separate punishment for count 2. (Compare People v. Ibarra (2007) 151 Cal.App.4th 1145, 1153 [separate punishment for corporal injury and attempted murder proper where the defendant first dragged the victim around by her hair and with a belt around her neck with the intent to humiliate and torture before attempting to kill her]; People v. Nubla (1999) 74 Cal.App.4th 719, 731 [section 654 did not bar separate punishment for corporal injury and assault with a deadly weapon where the defendant pushed wife onto bed and placed a gun against her head before assaulting her by pushing a gun into her mouth].) Because an enhancement “is dependent upon and necessarily attached to its underlying felony” (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311), it follows that the enhancements attached to count 2 must also be stayed as well.
Since the trial court here selected count 2 as the base count for the principal determinate term and imposed one-third the middle subordinate sentences four counts 4, 5, and 6, and their attendant enhancements, the matter will need to be remanded to the trial court to select a new full principal term for the determinate portion of the sentence. (See § 1170.1, subd. (a); see also People v. Garza (2003) 107 Cal.App.4th 1081, 1094.)
Accordingly, defendant will have to be resentenced to allow the trial court to select a new base term from counts 4, 5, and 6.
III
DISPOSITION
The matter is remanded for resentencing in accordance with this opinion. In all other respects, the judgment is affirmed.
We concur: McKINSTER Acting P.J., KING J.