Opinion
E080003
11-15-2023
THE PEOPLE, Plaintiff and Respondent, v. TYRONE JACKSON, Defendant and Appellant.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Michael J. Patty, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF1902963 Samuel Diaz, Jr., Judge. Affirmed.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Michael J. Patty, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MENETREZ J.
Tyrone Jackson was convicted of numerous offenses for strangling and shooting his girlfriend, Jane Doe. Jackson's sole contention on appeal is that the trial court erred by not staying one of the sentences under Penal Code section 654. (Unlabeled statutory references are to the Penal Code.) We reject the contention and affirm.
BACKGROUND
A. The Relationship
Jackson and Jane dated and lived together for two to three years. They lived in a one-bedroom apartment with Jane's two minor sons, John Doe and Anthony. Jane and Jackson's arguments always became "physical." Jane described two incidents-one on Father's Day in 2019 and another sometime before that-in which Jackson both "choked" her and pointed a gun at her.
B. The Incident
On July 21, 2019, Jane hosted a birthday party for Anthony at her apartment. The party's attendees left at around 11:00 p.m., after which Jane and Jackson got into an argument over text messages. When Jane and Jackson began arguing, they were in the kitchen. Jane pushed or "shoulder check[ed]" Jackson, but he did not fall to the ground or otherwise "get hurt."
Jane headed toward the bedroom. Jackson grabbed Jane with two hands, then "choked [her] tight," and then "let [her] go." Jane was unable to talk while Jackson choked her, and she momentarily lost consciousness. Jane cried and went into the bedroom, where her sons were located. Jackson followed Jane into the bedroom and pulled her hair. Jane fell to the floor and landed flat on her back. Jackson lifted up Jane's head with one hand. Jane heard Jackson say, "I love you." She then felt pressure on her neck and heard a "pop," and "[a] lot" of blood started coming out of her neck. A single bullet had penetrated her neck, entering through the front left side and exiting through the right rear.
Jane asked Jackson to call 911. He complied after telling Jane and her sons to say that Jane was shot in a drive-by shooting.
John was seven years old when Jackson shot Jane. John was in the bedroom and could not fall asleep because he heard Jackson and Jane arguing in the other room. Jackson and Jane entered the bedroom about one minute later. The bedroom lights were on. John saw Jackson shoot Jane in the neck. Before Jackson shot Jane, John heard Jackson say, "I will take care of the kids."
C. Investigation
An investigator with the sheriff's department found a .22-caliber pistol on the roof of an adjacent apartment complex. Caliber refers to the size of a round of ammunition. A .22-caliber round is the smallest caliber but is no less dangerous than other rounds of ammunition, such as a .357 round. The adjacent rooftop was so close to the roof of Jane's apartment complex that the investigator hopped onto it from the roof of Jane's apartment complex.
D. The Charges
Jackson was charged by information with (1) one count of premeditated attempted murder (§§ 187, subd. (a), 664, count 1); (2) one count of assault with a deadly weapon, to wit, a firearm (§ 245, subd. (a)(2), count 2); (3) one count of corporal injury on a cohabitant resulting in a traumatic condition (§ 273.5, subd. (a), count 3); (4) one count of being a felon in possession of a firearm (§ 29800, subd. (a)(1), count 4); and (5) one count of committing assault by means of force likely to product great bodily injury (§ 245, subd. (a)(4), count 5). The information also alleged numerous enhancements associated with counts 1, 2, and 3. (§§ 12022.7, subd. (e) (counts 1, 2, &3), 12022.53, subd. (d) (count 1), 12022.5, subd. (a) (counts 2 &3).) The information also alleged that Jackson had one prior serious felony conviction (§ 667, subd. (a)) and one prior strike (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).
E. Jailhouse Phone Calls
The parties stipulated that between July 19, 2019, and November 10, 2020, Jackson called Jane over 200 times from jail, and she accepted all of the calls. Transcripts of recordings of some of the calls were admitted into evidence.
During one phone call, Jane asked Jackson if he realized what he did to her, and he responded, "I realize I shot you in the neck. I shot you in the neck." Jackson reiterated that he shot Jane in the neck several times, but he did not tell Jane why he shot her. During another conversation, Jackson told Jane: "Listen, if I wanted to really kill you, man, I woulda killed you-I woulda just shot you in your fuckin' face with my .357, man, just got it over with-just left, you know what I mean. But I didn't do that, you know." Jane once asked Jackson how many times he had "choked [her] out," and Jackson answered, "I choked you out, like, a thousand times."
Jackson urged Jane not to testify, not to go to court, to change her testimony, to "plead the Fifth," and to testify that the shooting had been accidental. He also told Jane to tell the district attorney's office whatever she wanted, including, "I did it on purpose. I meant to kill you all right? Tell 'em I did that and I meant to do it, you know what I mean?" When Jane pressed Jackson about whether he had really meant to kill her, Jackson said that if he had he would not have called for help or remained at the scene. Jackson then accused Jane of being a "snitch" and told her, "I hope you fucking die and I'm serious."
F. Closing Argument
During closing argument, the prosecutor argued that counts 1 through 3 were all based on the shooting and that count 5 was based on the strangling. The prosecutor argued: "It's important to keep in mind what happened in the bedroom didn't start in the bedroom. This started earlier. This started out in the kitchen. It started with him strangulating [sic] her....[¶] . . . So he strangles her, and then she leaves the kitchen, she goes into the bedroom, and it doesn't end there. It doesn't end. He continues this violence, grabs her by the hair, drags her to the ground. So it's important to remember, this is a continuous course of conduct. This isn't just a little snapshot. Oops pulled the trigger, that's it. This happened in the context of this argument, this whole violent situation that's unfolding, that's been unfolding for a while."
G. The Verdict, the Guilty Plea, and Sentencing
The jury deadlocked on count 1 (premeditated attempted murder), so the court declared a mistrial as to that count. The jury found Jackson guilty on counts 2 through 5. The jury also found true the allegations associated with counts 2 and 3.
The parties stipulated that Jackson was prohibited from possessing a firearm on July 21, 2019.
At the sentencing hearing, the prosecution amended count 1 to allege that Jackson had committed attempted second degree murder. The People also moved to strike the firearm enhancement associated with count 1. Jackson pled guilty to the amended attempted murder allegation and admitted as true the associated great bodily injury enhancement. He also admitted he sustained a prior strike. Jackson stipulated that the sentences for counts 1, 2, and 3 should not be stayed under section 654. Jackson's counsel did not argue that section 654 applied to count 5.
The court sentenced Jackson to an aggregate term of 31 years and four months, calculated as follows: seven years for count 1, doubled to 14 years because of the strike, with an additional five years for the great bodily injury enhancement, plus one year doubled to two years for each of counts 2, 3, and 5, plus eight months doubled to 16 months for count 4, plus five years for the prior serious felony conviction, with all sentences to run consecutively.
DISCUSSION
Jackson contends that the trial court erred by not applying section 654 to stay the sentence for assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) (count 5). We are not persuaded.
Section 654 provides: "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) It "'prohibits multiple punishment for the same "act or omission."'" (People v. Correa (2012) 54 Cal.4th 331, 337.) "'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.'" (Id. at p. 336; People v. Corpening (2016) 2 Cal.5th 307, 311.) However, a defendant may be punished for each offense "[i]f he [or she] entertained multiple criminal objectives which were independent of and not merely incidental to each other . . . 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.)
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) We must uphold the trial court's express or implied factual findings if supported by substantial evidence. (People v. Brents (2012) 53 Cal.4th 599, 618.) "We review the trial court's determination in the light most favorable to the [People] and presume the existence of every fact the trial court could reasonably deduce from the evidence." (Jones, supra, at p. 1143.)
"'Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.'" (People v. Hester (2000) 22 Cal.4th 290, 295.) We accordingly analyze whether the trial court erred by not applying section 654 to stay the sentence for count 5, even though Jackson did not make the argument in the trial court.
Jackson contends that his acts of strangling and shooting Jane were committed within seconds of each other and "were thus part of an indivisible course of conduct with the same underlying intent: to assault [Jane]. There was no indication that [Jackson] entertained one intent when he choked her and a different intent when he fired the shot." We agree that substantial evidence supports Jackson's contention, namely, that he entertained the singular objective of physically harming Jane when he strangled her and when he shot her. For example, a reasonable factfinder could infer from the fact that Jackson called 911 immediately after shooting Jane that he did not intend to kill her. But the trial court implicitly found that Jackson harbored separate and independent intents and objectives when he committed the two crimes, and that implied finding is also supported by substantial evidence.
The trial court could reasonably find that Jackson's strangulation of Jane was motivated solely by a desire to scare and hurt her and that Jackson formed the separate and independent intent to kill Jane moments later, after he let her go but before he shot her. Jane testified that Jackson had "choked" her on two previous occasions, and Jackson admitted that he had "choked" her many times in the past. From that evidence, the trial court could reasonably infer that Jackson knew that he could strangle Jane without killing her, thus supporting a reasonable inference that Jackson's intent in strangling Jane the night of the birthday party was to do as he had previously done, hurting Jane but not killing her.
There is ample evidence from which the trial court could reasonably infer that Jackson intended to kill Jane, rather than merely scaring or injuring her, when he shot her in the neck. Before Jackson shot Jane, John heard Jackson tell Jane that he would take care of Jane's children. The trial court could reasonably infer that Jackson meant that Jane's children would need a guardian because he was going to kill her. Moreover, the trial court could reasonably infer from the evidence that Jackson told Jane that he loved her right before he shot her that he was saying goodbye to her, believing that she would die from the gunshot wound he was about to inflict. The trial court also could reasonably infer that Jackson intended to kill and not just wound Jane from the fact that he shot Jane in the neck at close range, which could have been fatal, regardless of the firearm's small caliber. In addition, Jackson told Jane to tell the district attorney's office that he had intended to kill her when he shot her. The trial court could choose to believe that this was a truthful account of what Jackson had intended, especially given that in that same conversation Jackson also told Jane that he seriously wanted her to die. The trial court could choose to disbelieve Jackson's assertion in that same call that he had not intended to kill Jane when he shot her. Moreover, the trial court could reasonably infer that Jackson's 911 call showed that he felt remorse after shooting Jane, not that he did not intend to kill her when he shot her.
Jackson's argument to the contrary is unavailing. He contends that the course of conduct was indivisible because that is what the prosecutor argued to the jury. The prosecutor's statements are not evidence and, under the circumstances of this case, were not binding on the trial court in determining whether to apply section 654. (People v. Leonard (2014) 228 Cal.App.4th 465, 500.) Regardless of the prosecutor's statements to the jury, the record contains substantial evidence that Jackson harbored independent intents and objectives when he strangled and shot Jane.
Because there is substantial evidence supporting the trial court's implied finding that the course of conduct comprising the strangling and shooting of Jane was divisible, we affirm the trial court's determination that the two-year consecutive sentence on count 5 should not be stayed under section 654.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P. J. MILLER J.