Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. John B. Gibson, Judge. Super. Ct. No. FNE004296.
Richard Schwartzberg, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Tami Falkenstein Hennick, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant, James Jones, of inflicting corporal injury on his spouse (Pen. Code, § 273.5, subd. (a)), during which he inflicted serious bodily injury (§ 12022.7, subd. (a)), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1) and misdemeanor escape from arrest (§ 836.6, subd. (b)). In bifurcated proceedings, he admitted having suffered a strike prior (§ 667, subds. (b)-(i)), a serious prior (§ 667, subd. (a)) and three priors for which he served prison terms (§ 667.5, subd. (b)). He was sentenced to prison for 17 years and appeals, claiming that insufficient evidence supports his conviction for aggravated assault and sentencing error occurred. We reject all his contentions, save the one concerning one of his enhancements under section 667.5, subdivision (b). As to it, we order it stayed and order the trial court to amend the abstract of judgment and minutes of the sentencing hearing to reflect this, as well as other errors appearing therein. As to the remainder of the judgment, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
The facts will be disclosed in our discussion of the sufficiency of the evidence.
1. Sufficiency of the Evidence
Defendant contends that there was insufficient evidence to support his conviction for assault by means of force likely to produce great bodily injury. We disagree. Defendant hit the victim in the head and face with a closed fist several times in a parking lot near the water. After the second punch, she appeared to lose consciousness, went limp and went down to the ground. Defendant punched her five or six more times. She appeared to be unconscious as he grabbed her by the hair and threw her into a truck. The injuries she sustained were photographed and those pictures were shown to the jury. The truck went to the parking lot of a nearby motel where the victim, now conscious, but distraught, got out and was assisted to her room by a woman. After the two women were in the room for 5 to 10 minutes and while the victim was lying on the bed and the other woman sitting on it, defendant entered the room and pulled the victim off the bed by her legs and she hit the floor. Defendant “[b]egan to hit [the victim] more”—“he punched her again[.]” The woman got in between defendant and the victim, but was thrown aside by defendant. The woman’s husband then came into the room and he and the defendant exchanged blows before other people entering the room behind the husband pulled the two men apart.
Defendant here contends that the foregoing was insufficient evidence that he committed in the motel room an assault by means of force likely to produce great bodily injury, rather than a battery.
The jury was instructed as follows, concerning this charge, “The defendant is charged in Count 2 with assault with force likely to produce great bodily injury, in violation of Penal Code section 245 subdivision (A). [¶] []To prove the defendant is guilty of this crime, the People must prove that: [¶] []One: Force was used – the force used was likely to produce great bodily injury; [¶] []Two: The defendant did the act willfully; [¶] []Three: When the defendant acted, he was aware of facts which would lead a reasonable person to realize that his act by its nature would directly and probably result in application of force to someone else; and [¶] []When the defendant acted he had the present ability to apply force likely to produce great bodily injury; and [¶] []The defendant did not act in self-defense or in defense of another. [¶] []Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or her intend to break the law, hurt someone else or gain any advantage. [¶] []The term application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person including through his or her clothing is enough. The touching does not have to cause pain or injury of any kind. The People are not required to prove the defendant actually touched someone. [¶] []The People are not required to prove the defendant actually intended to use force against when he acted. No one needs to... actually have been injured by the defendant’s act, but if someone was injured, you may consider that fact along with all the other evidence in deciding whether the defendant committed an assault, and if so what kind of assault it was.”
As the People correctly note, whether the force is likely to produce great bodily injury is a question of fact to be determined by the jury. (People v. Hopkins (1975) 44 Cal.App.3d 669, 676.)
Defendant contends that because the woman did not describe the amount of force of the blows defendant delivered in the motel room, nor was there evidence that they resulted in injury, the evidence is insufficient to support the conviction. However, as the prosecutor pointed out during argument to the jury, defendant had already beaten, knocked unconscious and inflicted bodily injury on the victim, which the jury found to be serious. This “set her up” so that the impact from her being dropped to the floor when he pulled her off the bed or the blows that he inflicted on her thereafter could have caused her significant injury.
2. Sentencing
a. Consecutive Term
The court imposed a consecutive term for the aggravated assault, concluding that it and the earlier beating, which resulting in the conviction for corporal injury to a spouse, were not the same offense, but were “separated both in time and location” from each other. Defendant contends that because the court also said it “intend[ed] to... give the shortest period of time in state prison that [it could], within the findings of the jury” it must have been unaware of its discretion to impose a concurrent sentence on this conviction. However, the probation report, which the court noted it had read states, “Criteria affecting the decision to impose consecutive rather than concurrent sentences include: [¶]... The crimes [in] Count 1 and 2 did involve separate acts of violence or threats of violence [and] [¶]... [t]he crimes were committed at different times or separate places.” The probation officer recommended that the sentence for the aggravated assault run consecutive to the sentence for inflicting corporal injury on the victim. Finally, the court said it wanted to impose the lightest sentence possible “within the findings of the jury.” Therefore, we disagree with defendant that the record supports an inference that the sentencing court was unaware of its discretion to impose a concurrent term for the aggravated assault.
The sentencing court said it agreed with the People’s argument that the two offenses were not the same. The prosecutor said that after the first crime occurred, defendant “took [the victim] to a new location in a zone of safety, and beat her again once she came to.” The prosecutor asked the court to follow the recommendation of the probation officer, who stated that the crimes involved separate acts of violence or threats of violence and were committed at different times or separate places. (See text following fn. 3, post, p. 5.)
We note with interest that, despite this statement, the sentencing court rejected defendant’s request that it dismiss the strike, saying, “The offenses are to[o] recent and too closely associated with violence for the Court to in good faith exercise its discretion and [dismiss] the strike.”
Defendant attempts to confuse the issue by calling our attention to the California Supreme Court’s holding in People v. Deloza (1998) 18 Cal.4th 585 (Deloza) that principles governing section 654 proscription on multiple punishment do not apply to the determination whether crimes were committed on the same occasion or arose from the same set of operative facts for purposes of mandatory consecutive terms under section 667, subdivision (c)(6). That subdivision provides, “If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).” However, by stating a reason for imposing consecutive terms, the sentencing court here implied that such a statement was required, which further implied that consecutive terms were not mandatory. The court’s statement was proper under California Rules of Court, Rule 4.425. Therefore, there is no reason to remand the case to permit the trial court to exercise its discretion to impose a concurrent term—the sentencing court has already decided not to do so, and it stated a proper reason for that decision.
Thus, the sentencing court appeared to agree with defendant’s assertion that these crimes occurred in “close temporal and spatial proximity” (Deloza, supra, 18 Cal.4th at p. 594) to each other. If they had not, consecutive sentencing would have been mandatory. (§ 667, subd. (c)(6).)
b. Section 654
Defendant contends that the sentencing court’s use of his 1991 conviction for attempted burglary in Santa Clara County to impose both a 5 year enhancement under section 667, subdivision (a) and a one year enhancement under section 667.6, subdivision (b) violates section 654. In support, he cites People v. Jones (1993) 5 Cal.4th 1142, which held, with an amazing lack of clarity, that a prior conviction used as a five year enhancement under section 667 could not also be used as a one year enhancement under section 667.5, subdivision (b).
From that point on, defendant’s argument takes a serious misstep. He goes on to assert that “[f]ollowing Jones” this court in People v. Cline (1998) 60 Cal.App.4th 1327 [Fourth Dist., Div. Two] “accepted the Attorney General’s concession that a stay was required.” The only stay the People accepted in Cline had nothing whatsoever to do with Jones or sections 667 and 667.5, subdivision (b). Rather, the People conceded that section 654 required that one of the two offenses for which defendant was currently being sentenced had to be stayed, rather than imposed concurrently, because it was based on the same indivisible course of conduct as the other current offense. (Cline, supra, 60 Cal.App.4th at p. 1336.) Jones was not cited and was not relevant. Defendant then goes on to cite People v. Carter (1983) 144 Cal.App.3d 534 and People v. Hopkins (1985) 167 Cal.App.3d 110, for the propositions that section 654 prohibits the imposition of enhancements under sections 667.5 and 667.6, and 667 and 667.5, respectively. Unfortunately for defendant, both of these decisions were disapproved in People v. Coronado (1995) 12 Cal.4th 145, 158, 159 to the extent that they relied on the incorrect premise that the acts made punishable by the enhancements are the prior offenses which resulted in the prior convictions and not on the defendant’s status as a repeat offender.
The People assert that defendant was charged with and admitted having suffered a prior serious conviction in Orange County and three prior convictions, one for the Santa Clara County attempted burglary and two in Los Angeles County, for which he served prison terms. Therefore, the People argue, there was no duplicative use of defendant’s attempted burglary conviction. As defendant correctly states in his reply brief, the People have misread the record. Not only did the Information not allege a serious prior from Orange County (the Santa Clara County burglary was the only allegation made under section 667, subdivision (a)), but defendant admitted the same as a strike and admitted it again, along with the Los Angeles County convictions, under section 667.5, subdivision (b).
The sentencing court neglected to impose a term for defendant’s escape from arrest conviction at the sentencing hearing. Later that day, the parties reconvened for this. At the end of this hearing, defense counsel said to the sentencing court, “... [I]t occurred to me that on the five year prior which the Court sentenced him to five years, the... Court also sentenced him to one year on that same prior, I’m not sure that can be done. I think [defendant] either gets the higher one or the lower one.” The court responded, “I believe I can and I did.”
Therefore, under Jones, the section 667.5, subdivision (b) one year enhancement for the Santa Clara attempted burglary will be stayed. (People v. Lopez (2004) 119 Cal.App.4th 355, 364-366.)
c. Credits
The parties agree that the abstract of judgment does not accurately reflect the awarding of credits, which are as follows: “59 days actual, plus 8 good time/work time, for a total of 67.” The abstract incorrectly shows actual credits of 67 days, with no local conduct credits. The minute order incorrectly states, “Credit [for] 67 days served.” The parties agree that the abstract must be amended to reflect what was actually awarded by the sentencing court. The minutes must also be amended.
Disposition
The one year sentence under section 667.5, subdivision (b) for defendant’s Santa Clara County attempted burglary is stayed. The trial court is directed to amend the abstract of judgment and the minutes of the sentencing hearing to show this, and defendant’s new total sentence of 16 years. The trial court is further directed to amend the abstract and minutes to show that defendant served 59 actual days of presentence time and received 8 days of credit, for a total of 67 days. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J., MILLER J.