Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. SA061710 of Los Angeles County, Katherine Mader, Judge.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Ali Jones, appeals from the judgment entered following his conviction, by jury trial, for assault with a deadly weapon and battery with serious bodily injury, with prior prison term findings (Pen. Code, §§ 245, 243, subd. (d), 667.5). Sentenced to state prison for four years, he claims there was sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
1. Prosecution evidence.
Hamid Mosavi owns the Shamshiri restaurant on Westwood Blvd. Defendant Jones was homeless. Mosavi, who does community work with the homeless, had allowed Jones to sleep in an alley behind the restaurant for about a year. Mosavi once offered Jones food, but Jones refused to accept it. On one occasion, four or five months before the incident in question, Jones was staring through the front window of the restaurant and upsetting the patrons. When Mosavi went outside to tell Jones to go away, Jones said, “Man. You don’t even want to [fuck] with me.”
On the morning of September 12, 2006, Mosavi was at home when he was informed there had been a burglary at the restaurant. Upon arrival, Mosavi found that pots, pans, sodas, large bags of rice, and ladders were missing from the restaurant’s storage area. Mosavi noticed Jones was behind the restaurant, changing his clothes. He went out to ask Jones if he had witnessed the burglary. Given the items that were missing, Mosavi did not suspect Jones of having committed the burglary; he just thought Jones might have seen something.
Jones was across the alley from the restaurant’s parking lot, which itself was just behind the restaurant. Jones was standing behind a metal security gate leading to someone else’s property. When Mosavi asked Jones if he had seen anything, Jones said, “Man. You don’t even want to [fuck] with me.” As Mosavi tried to explain he was not accusing Jones of anything, Jones came toward him in an aggressive manner and said, “You went and done it.” Jones had both of his hands raised and Mosavi became alarmed. He pushed Jones backward and closed the security gate. Mosavi testified Jones “looked around. He was looking around for something. [¶] That’s when I got really scared. Because I thought, man, he’s looking for a pistol or something. [¶] And he grabbed . . . a bottle of bleach, and he started throwing it at the screen door where I was holding.”
Jones splashed the bleach onto Mosavi’s shirt and his face. Jones then grabbed a bottle of liquid detergent and splashed some of that through the security gate toward Mosavi. As Mosavi slipped on the detergent and fell to the ground, Jones kicked the security gate, which hit Mosavi in the back hard. Then Jones began punching Mosavi: “I didn’t think he was going to hit me. Somehow I thought that he’s going to calm down seeing me on the floor. But he hit me in the face. He kept hitting me in the face.” When Mosavi tried to defend himself by grabbing onto Jones’s legs, Jones grabbed Mosavi’s neck and bit his right ear so hard it began to bleed profusely. “[B]lood started gushing everywhere.” Mosavi could see his blood in Jones’s mouth.
Finally, Mosavi was able to push Jones away from him and get the security gate closed. Jones spit at Mosavi through the gate and tried to open it again. By this time, a crowd of people had gathered in the alley to see what was going on. These were people from the restaurant, neighbors, and workers from adjacent businesses. Jones kept spitting at Mosavi. Mosavi testified: “I held the door, and I told him, ‘That’s enough.’ ” Jones then grabbed a five gallon bottle of laundry detergent and swung it at Mosavi, hitting him on the arm right above the elbow. Mosavi felt pain shooting through his arm and he couldn’t move his hand anymore. Jones ran away.
As a result of the blow from the bottle of laundry detergent, Mosavi suffered a serious injury to his triceps and had to have two surgeries to repair torn ligaments.
2. Defense evidence.
Jones testified the first time he met Mosavi, he had stopped outside Mosavi’s restaurant to look through his bag; Mosavi came outside, hit him and cursed at him. Mosavi never offered him food.
On the day of the incident, Jones was sleeping in the alley behind the restaurant when Mosavi woke him up and accused him of stealing. They argued, and then Mosavi punched him and pushed the metal security gate against him. They started throwing punches at each other. The fight lasted for about five minutes. Jones testified he got scared when Mosavi hit him and that he was just defending himself.
CONTENTION
The trial court erred by imposing a concurrent sentence on count 2, the battery conviction.
DISCUSSION
Concurrent term on count 2 was properly imposed.
At sentencing, the trial court imposed a mid-term three-year sentence on count 1 (assault with a deadly weapon), adding a one-year enhancement for a prior prison term finding. The trial court then imposed a concurrent three-year term on count 2 (aggravated battery). Jones contends the concurrent term on the battery conviction violated the rule against multiple punishment contained in section 654. This claim is meritless.
a. Legal principles.
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.” “ ‘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. Latimer (1993) 5 Cal.4th 1203, 1208.) “ ‘The question of whether the acts of which [a defendant] has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendant’s intent and objective in committing the acts. This determination will not be reversed on appeal unless unsupported by the evidence presented at trial.’ ” (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.)
“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. [Citations.] ‘We must “view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” [Citation.]’ ” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313].) This is so, whether or not the trial court made express factual findings. (See People v. Osband (1996) 13 Cal.4th 622, 730 [trial court’s implicit determination that defendant had more than one objective was supported by substantial evidence]; People v. McCoy (1992) 9 Cal.App.4th 1578, 1585 [trial court’s finding, whether explicit or implicit, may not be reversed if supported by substantial evidence].)
b. Discussion.
Jones contends, “Substantial evidence supports the conclusion that the appellant engaged in one, unitary course of conduct, with one objective and intent, and therefore the trial court could not properly sentence appellant on both offenses.” Jones asserts his single intent and objective had been “to harm Mr. Mosavi and prevent Mr. Mosavi from continuing to question him.” Assuming Jones means to say he intended to harm Mosavi in order to prevent Mosavi from questioning him, we conclude the evidence shows Jones was properly sentenced on count 2.
If we did not make this assumption, we would simply find against Jones because he himself identified two different intents: to harm Mosavi and to stop Mosavi from questioning him. (See People v. Nelson (1989) 211 Cal.App.3d 634, 637-639 [multiple sentences proper where reasonable inference from evidence was that defendants intended both theft and assault]; People v. Foster (1988) 201 Cal.App.3d 20, 27-28 [multiple sentences for false imprisonment and robbery proper where, after money taken in store robbery, victims were locked in store cooler].)
If Jones’s only intent had been to make Mosavi leave him alone, Jones would have ceased fighting when Mosavi pushed him back through the security gate after Jones punched Mosavi in the face and bit his ear. At that point Jones was on one side of the security gate, Mosavi was on the other, and Mosavi was doing all he could to keep the gate closed because he was afraid Jones would attack him again.
We conclude the evidence supports a finding there were two separate courses of conduct. As the Attorney General suggest, “The first event occurred when appellant pushed the metal door against Mosavi and while Mosavi was on the ground, appellant attacked him by punching his face and biting his ear. At this point, the battery with serious injury had already been completed. The second event began when Mosavi was able to push appellant beyond the metal door and close it behind him. This is when appellant committed the assault with a deadly weapon by swinging and striking Mosavi with a heavy detergent container.”
We also agree with the Attorney General’s alternative analysis that, even if there had been only one continuous course of conduct, multiple punishment was not precluded by section 654 because the two crimes were divisible in time: “Appellant had already inflicted serious injury to Mosavi by the time he had been pushed off beyond the metal door by Mosavi. Standing behind the metal door, appellant had an opportunity to reflect on his actions and, further intending to cause even greater injury by using a deadly weapon, appellant picked up a heavy plastic container and swung it . . . at Mosavi, striking him . . . .” “[A] course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment.” (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; see People v. Felix (2001) 92 Cal.App.4th 905, 915 [“multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm”].) Thus, in People v. Trotter (1992) 7 Cal.App.4th 363, multiple assault sentences were proper where the defendant fired three gunshots in slightly more than a minute at a pursuing police officer during a freeway chase: “[T]his was not a case where only one volitional act gave rise to multiple offenses. Each shot required a separate trigger pull. All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible,” and “[d]efendant’s conduct became more egregious with each successive shot.” (Id. at p. 368.)
The concurrent term on count 2 did not violate section 654.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.