Opinion
A116625
4-21-2008
THE PEOPLE, Plaintiff and Respondent, v. BRANDON L. JONES, Defendant and Appellant.
NOT TO BE PUBLISHED
I. INTRODUCTION
Defendant Brandon Jones was convicted of one count of making criminal threats (Pen. Code, § 422), two counts of inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)), two counts of assault (§ 245, subd. (a)(1)) and one count of false imprisonment (§§ 236). He was sentenced to a prison term of five years and four months. On appeal he contends there is insufficient evidence to support his conviction for inflicting corporal injury on a cohabitant because he and the victim in this case did not "cohabitate." He also argues that the consecutive sentences for the two counts of assault and the single counts of making criminal threats, and false imprisonment, were imposed in violation of section 654. We disagree with these arguments and affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant and the victim met in May 2006. At the time they met, defendant was homeless and the victim was living with friends. A week after they met, the victim paid for a hotel room where defendant stayed for about five days. During that time, they had sex, and continued to do so through August 2006.
In August 2006, the victim moved into an apartment she had rented on Rhoda Avenue in Oakland. Defendant began staying at her apartment off and on from the time she had access to the apartment. The longest stay was for about a week. On August 22, 2006, a friend of defendants helped her move her furniture from Berkeley to Oakland. She paid this friend $50 for his help. She also gave defendant $30.
The victim testified that she has renal failure and undergoes dialysis three times a week. She has a graft below the skin in her arm that connects to a needle in the dialysis machine. During the day after dialysis she is "totally out of it," finding herself sluggish and having difficulty walking. It is difficult to participate in physical activities, to the extent that actions such as lifting herself up off the ground and doing jumping jacks are limited. This feeling lasts the entire day. Defendant was aware of the graft and of the victims physical limitations.
On August 23, 2006, the day after dialysis had been performed, defendant came to the victims house in the early morning hours. Defendant, who appeared to the victim to be drunk and "on something else" she could not identify, made several calls on the victims cell phone to his daughters mother, using the speaker phone. The victim asked defendant to lower his voice and defendant became "very angry, very upset." He paced back and forth between the kitchen and bathroom, naked, and slammed things in the kitchen.
The victim began to feel concerned and tried to leave the apartment. Defendant told her she could not leave ("Bitch, you are not going to go anywhere. Youre not going anywhere.") Defendant then closed the door to the bedroom, and pushed a dresser in front of it. He stood in front of the dresser and blocked the victims exit.
Defendant then lunged toward the victim and she found herself in the closet of her bedroom, defendant on top of her with his hands on her mouth, neck and throat. She lost consciousness.
When the victim regained consciousness, she noticed that the dialysis shunt in her left arm was not working properly. She also discovered that defendant was on her bed, going through her purse and removing her credit cards, debit cards and money. Defendant pulled her out of the closet by her left arm (the arm in which her shunt was located) and demanded her personal identification number (PIN) for her credit cards. He told her he would kick her if she lied to him. The victim, who thought she was going to die, told defendant he was hurting her and asked him to stop. She gave him her PIN. Defendant kicked the victim in her kidneys several times, and then in her face and back. He told the victim that he didnt "care about your access" and that she was "going to die." He told her she was going to die about ten times. Defendant held her from the back in a choke hold facing down on the floor. The victim again lost consciousness.
When the victim regained consciousness, defendant was again going through her purse. He demanded that she do 25 jumping jacks and told her that if she did not, she would die. He also told her to get off the floor, something she could not do. The victim was having trouble breathing and told defendant she needed her medications. Defendant blocked her access to her medication and told her he didnt "care about you or your medication or anything, because tonight youre going to die." Defendant got up from the bed and urinated on the victims face.
Defendant made himself something to eat, returned to the bedroom and got dressed, and gathered up some CDs and DVDs. He expressed concern that the victim would call the police and she said she would not. He then left.
The victim was afraid of defendant and did not call the police. Instead, she called Eric Smith, her sons father, and told him she had been assaulted by "Brandon Lee Jones."
Later that day, defendant called the victim and asked her to meet him in downtown Oakland. The victim refused and defendant became angry and told her he should have killed her. He called her again and asked her to call some people for him. In a third call, he told the victim he had some furniture for her. When the victim said she did not want any furniture, defendant asked her if she wanted "things to end between" them. The victim said she did.
A friend of the victims testified that she saw defendant at a concert the evening of August 23. Before the victim arrived, the friend saw defendant, who appeared to be "high on some drugs or . . . drinking." Defendant seemed agitated and angry with the victim. When the victim arrived ten or fifteen minutes later to meet her friend, she told defendant she did not want to speak with him and that things were over between them. Defendant said he would kill her, and told the friend that, the night before, he had "jumped on" the victim and held his "hand over her nose and her mouth and she passed out." He described the victim as "dead on the floor." He also said he had twisted victims arm, and had "stomped her in her back and kicked her in her side."
The friend thought the two were having what she described as a "lovers quarrel." Although she tried to calm defendant down, he continued to threaten the victim. After the concert, defendant followed the victim and her friend. The victim "seemed terrified and scared" and so, when the women saw an Oakland police officer, they stopped.
Officer Christopher Craig testified that he was on foot patrol on August 23, 2006, when he was approached by the victim and her friend, who were followed by defendant. He described the victim as "despondent" and "fearful." The victim told Officer Craig about the incidents that occurred early that morning, at around 3:00 a.m. She said that after a verbal dispute, the argument escalated and defendant blocked the doorway so she could not leave the apartment. She told the officer that, over a two and a half hour period, the defendant threatened her, wrestled her to the ground, covered her mouth, kicked her and prevented her from getting her medication.
The next day, a person doing routine maintenance at the victims apartment building noticed that the window to her apartment was partially removed and cracked. When the victim was notified of this she said that no one had permission to be in her apartment and that he should call the police. About ten minutes after this conversation, the maintenance person rang the doorbell to the apartment. Defendant answered the door and identified himself as the victims boyfriend. Defendant was arrested and, from jail, made about forty attempts to call the victim. She did not accept any of the calls.
After a jury trial, defendant was found guilty of one count of making criminal threats (Pen. Code, § 422), two counts of inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)), two counts of assault (§ 245, subd. (a)(1)) and one count of false imprisonment (§ 236). This timely appeal followed.
III. DISCUSSION
A. Corporal Injury to Cohabitant
Defendant argues that there is insufficient evidence to support his conviction on two counts of violating section 273.5, subdivision (a), because there was insufficient evidence that he was cohabiting with the victim. We disagree.
Section 273.5, subdivision (a), provides that "Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony . . . ." In People v. Holifield (1988) 205 Cal.App.3d 993 (Holifield), this court addressed the issue of what constitutes cohabitation. In that case, we construed section 273.5s reference to cohabitation as referring to "something more than a platonic, rooming-house arrangement." (Id. at p. 999.) In reaching this conclusion, we noted that "[t]here is a further, practical reason for construing the statute this way. While, unlike the instant case, there will be borderline situations in which the existence of the requisite `significant relationship may be difficult for law enforcement or jurors to ascertain, the problems would be multiplied many times over if the test were whether a full quasi-marital relationship existed. Recently, in holding that a cause of action for negligent infliction of emotional distress should be limited to married couples, the Supreme Court noted that extending recovery to unmarried cohabitants `would impose a difficult burden on the courts. It would require a court to inquire into the relationship of the partners to determine whether the "emotional attachments of the family relationship" existed between the parties [citation], and whether the relationship was "stable and significant" [citation]. . . . [Citation.] Rejecting the idea that `the stability of a cohabitation relationship could be established by evidence of its duration, whether the parties had a contract, the degree of economic cooperation, the exclusivity of sexual relationships, and whether the couple had children [citation], the court responded: `In Norman v. Unemployment Ins. Appeal Board [1983] 34 Cal.3d 1, 8-10, we commented on the "difficult problems of proof" involved in determining whether a relationship is equivalent to a marriage. Authorities in this state and elsewhere have rejected [such a] test as inviting "mischief and inconsistent results." [Citations.] [¶] A determination . . . based on such matters as the sexual fidelity of the parties and their emotional and economic ties would require a court to undertake a massive intrusion into the private life of the partners. Further, application of these factors would not provide a sufficiently definite and predictable test to allow for consistent application from case to case. [Citation.] Problems of definiteness, predictability and consistent application, of course, are vital considerations in the context of the vagueness arguments asserted here. A police officer, district attorney, court and jury will have far less trouble determining whether a significant live-together relationship exists than determining whether the relationship is quasi-marital, particularly when there exists such uncertainty over which rights, duties and obligations of marriage are ordinary in our society." (Holifield, supra, at p. 1000, italics omitted.)
"`Cohabiting" under section 273.5 means, therefore, "an unrelated man and woman living together in a substantial relationship — one manifested, minimally, by permanence and sexual or amorous intimacy. That definition accords with the common, broad understanding of `cohabiting except for the limitation, implied from the man-woman restriction on the face of the statute, that the couple must be unrelated and living in sexual or amorous intimacy." (Holifield, supra, 205 Cal.App.3d at p. 1000; see also People v. Moore (1996) 44 Cal.App.4th 1323, 1333 (Moore) [phrase "cohabitation" broadly interpreted] and People v. Taylor (2004) 118 Cal.App.4th 11.)
Given the broad definition of cohabitation we have just outlined, we conclude that substantial evidence supports the jurys conclusion that defendant and the victim were, in fact, cohabiting at the time the defendant assaulted the victim. Defendant and the victim had had a sexual relationship for over three months, had been to dinner, movies and a local bar together. Defendant did not have a stable home, and the victim paid for a hotel room where the defendant stayed for five days and where he and the victim had sex. In addition, when the victim finally moved into her own apartment, defendant stayed some days and nights in the apartment before he assaulted the victim. After the assault, defendant asked the victim if she wanted "things to end between them" and referred to the victim as his "girlfriend." The victim also described their relationship as being "over." It is apparent that both defendant and the victim saw their relationship as far from a casual one and that substantial evidence supports the jurys conclusion that it fit the definition of "cohabiting."
Defendant, however, argues that the relationship between defendant and the victim was too insubstantial to constitute cohabitation. In particular, he argues that there is insufficient evidence that defendant and the victim lived together because the defendant did not live at the house the victim rented, kept no clothing there and did not have a key.
We disagree. A couples "unstable or transitory" living arrangements do not "deprive them of the statutory protection of section 273.5." (People v. Taylor, supra, 118 Cal.App.4th at p. 19.) Thus, in Taylor, a victim who was homeless and living in a defendants car after about five months of dating and having a sexual relationship that resulted in the victim becoming pregnant with the defendants child, was found to be cohabiting with the defendant. The court concluded that section 273.5 applied, noting that "[p]ermanence does not require exclusivity in either the relationship or the living arrangement." (Id. at p. 19.) Similarly, in Holifield, we found cohabitation between a victim and defendant despite evidence of minimal cohabitation and infrequent sex. (Holifield, supra, 205 Cal.App.3d at pp. 996-997.) We concluded that the relationship of three months had "some permanency" and was sufficient to trigger the application of section 273.5 where "defendant lived with [the victim] at the hotel half or more of the three months preceding the assault and had no other regular place to stay. When there, he slept and had occasional sex with her, although he ate few meals there and often went out alone evenings after work. He brought his few belongings with him each time he returned to her. They did not share rent, a bank account or the cost of furnishings, but that is not surprising considering their meager resources, few belongings and cramped quarters. Such sharing is not essential in any event. The jury could have felt that the fact that rent was not shared refuted the idea that their relationship was one of convenience only. The sex, though infrequent, and Andress romantic feelings for him, though unreturned, show an intimacy going well beyond that of ordinary roommates." (Id. at p. 1002.) Similarly, here the facts of the relationship between the defendant and the victim have more to do with their social and economic circumstances than with an absence of a continuous, intimate relationship.
Finally, in Moore, supra, 44 Cal.App.4th at page 1334, the court found that a couple lived together in a "substantial relationship" despite intermittent residence of the defendant." As the court observed in People v. Ballard (1988) 203 Cal.App.3d 311, 314, 317, 318, it was enough that the couple was "`together a lot" and "`lived together in one bed." (Id. at p. 1334.)
Our conclusion that a couple may cohabit even if they do not live in the same household regularly ensures that a "defendant who physically abuses a cohabitant cannot immunize himself from criminal liability merely by living part-time elsewhere." (Moore, supra, 44 Cal.App.4th at p. 1335.) Similarly, here, defendant is not immune from criminal liability because he did not reside with the victim at all times. He and the victim were together in a sufficiently substantial way to constitute cohabitation and we will not disturb the jurys verdict.
B. Consecutive Sentences
Defendant argues that the trial court erred in imposing consecutive sentences for the two counts of assault under section 245, subdivision (a)(1) and also for imposing a consecutive sentence for the criminal threat (§ 422) and false imprisonment (§ 236) convictions. He argues that, under section 654, the court should have stayed one of the assault convictions and should not have sentenced him consecutively for the convictions for criminal threats and false imprisonment. We disagree.
1. General Principles
Section 654 provides that "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).) "Although section 654 literally applies only where multiple statutory violations arise out of a single `act or omission, it has long been applied to cases where a `course of conduct violates several statutes. [Citations.]" (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252 (Kwok).) In general, the question of whether a course of 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." (Kwok, supra, 63 Cal.App.4th at p. 1253.)
In addition, a finding that multiple offenses were aimed at one intent and objective does not necessarily mean that those offenses constitute one indivisible course of conduct for purposes of section 654. "This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. [Citation.]" (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
"Whether the acts of which a defendant has been convicted constitute an indivisible course of conduct is a question of fact for the trial court, and the trial courts findings will not be disturbed on appeal if they are supported by substantial evidence." (Kwok, supra, 63 Cal.App.4th at pp. 1252-1253.) When we consider whether there has been an abuse of discretion in imposing multiple punishments 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." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
2. Assault Counts
The trial court imposed consecutive sentences after it found that the events underlying each of the counts for assault involved "separate act[s] of violence." Substantial evidence supports this conclusion.
The two assaults were temporally separate. The first assault against the victim occurred after she told defendant to keep his voice down while speaking on the telephone. After threatening the victim and preventing her from leaving her apartment, defendant lunged at the victim and she fell into the closet. He put his hands on her mouth, neck and throat and she lost consciousness.
The second assault occurred after the defendant regained consciousness. She testified that defendant was no longer standing over her in the closet but was on her bed going through her purse. He grabbed her by the arm and dragged her out of the closet, demanding that she give him her PIN (personal identification number). Even after she did so, defendant assaulted her, kicking her in the kidneys, face and back, telling her that she was going to die. The defendant again lost consciousness. Between these two events, defendant certainly had the opportunity to reflect on his actions and either form an intent to commit another assault, or stop and, therefore, they do not form an indivisible course of conduct but, rather, are two separate assaults.
Although defendant argues that he had only one intent and objective, to insult and humiliate the victim during an argument about money, the record supports the trial courts conclusion that the assaults involved more than one "intent and objective." The first assault occurred after the victim told defendant to keep his voice down, and after he berated her for treating him like a "little boy." The intent and objective of this assault was retaliation and retribution. The second assault, which took place after the victim regained consciousness, occurred when the defendant demanded the victims PIN card. The objective of this assault was to steal from the victim.
Because substantial evidence supports the imposition of consecutive sentences, we reject defendants argument.
3. Criminal Threats
The court sentenced defendant consecutively on his conviction of making criminal threats (§422). In doing so, the court explained, "this involved a separate act of threatened violence in that defendant threatened to kill her if she did not give him the correct PIN and if she would not perform 25 Jumping Jacks." Defendant argues that the "intent and objective" of the assaults on the victim were the same as the criminal threats: "an inappropriate expression of anger at the victim precipitated by a dispute about money." Our review of the record, however, indicates otherwise.
The assault against the victim was intended to inflict physical pain on the victim on two separate occasions: once to punish her for reprimanding defendant and a second time to force her to reveal her PIN to defendant. The objective of the repeated statements to the victim that defendant was going to kill her were intended to terrorize her and cause her mental torment. As the People point out, defendant could have assaulted the victim without repeatedly threatening to kill her. And he could have threatened to kill her without laying a hand on her.
Similarly, in People v. Solis (2001) 90 Cal.App.4th 1002 (Solis), the defendant argued that he should not have been sentenced consecutively on one count of arson and two counts of making terrorist threats because the objective in both cases was to threaten and scare the victim. The Solis court disagreed, finding that "in making the terrorist threats, the defendant intended to frighten whereas in committing arson an hour later the defendant intended to burn. Because defendant committed multiple and divisible acts with distinct objectives, section 654 was not violated by sentencing him on both the arson and terrorist threat convictions." (Solis, supra, 90 Cal.App.4th at p. 1022.) Similarly, here, defendants behavior was intended to accomplish different ends — his threats were intended to terrorize the defendant mentally; the assault to hurt her physically.
Defendants citation to People v. Mendoza (1997) 59 Cal.App.4th 1333 is inapposite. In Mendoza, the defendant was convicted of dissuading a witness from testifying by threat of force or violence and he was also convicted of making a threat of force. In that case, the court found that the defendants "primary objective was to help his brother by preventing further damaging testimony. . . . His objective and intent for scaring [the witness] was to dissuade her from testifying in the future. The method he employed to reach his objective was his implied threat of death or great bodily injury. Thus, his terrorist threat can only be considered incidental to his primary objective of dissuading [the witness] from testifying at his brothers upcoming trial." (Id. at p. 1346.)
Here, in contrast, defendants objectives were separate — the assaults against the victim were intended to injure her physically. The threats to kill her inflicted a different sort of damage: they terrorized her mentally and, therefore, constituted a separate act of criminal conduct. The trial courts imposition of consecutive sentences was, therefore, not an abuse of discretion.
4. False Imprisonment
Defendant also argues that the trial court erred when it imposed a consecutive sentence for his conviction of false imprisonment by violence or menace (§ 236) because the "intent and objective of the false imprisonment was the same as that in the assaults and criminal threats counts, an inappropriate expression of anger at the victim precipitated by a dispute about money." We disagree.
A false imprisonment is defined in section 236 as "the unlawful violation of the personal liberty of another." When a false imprisonment is achieved through "violence, menace, fraud, or deceit" (§ 237) it is punishable as a felony. "Menace" is defined as "a threat of harm express or implied by word or act." (CALJIC No. 9.60.)
Substantial evidence supports the courts conclusion that the false imprisonment of the victim was accomplished through acts separate from those of the other crimes. When the victim tried to leave the bedroom, and before defendant assaulted the victim, defendant became angry and said: "Bitch, you are not going to go anywhere. Youre not going anywhere. The only way youre going to leave up out of here is" if you jump out the window. After intimidating the victim, defendant physically prevented her from escaping by pushing a piece of furniture in front of the door and blocking her exit with his body. The victim felt physically threatened by this menacing behavior.
The false imprisonment of the victim was in no way "incidental" to the assault and terrorist threats. Given the victims physical state — in particular, the fact that hours before she had completed a round of dialysis and was in a substantially weakened state — if defendants only objective was to obtain money from her, he could have done so without also falsely imprisoning her.
In a similar case, People v. Manning (1982) 133 Cal.App.3d 159, 169-170, the court held that a defendant who tied up the victim in order to rape her was properly given consecutive sentences for the false imprisonment and rape because it was not necessary for the defendant to tie up the victim in order to rape her. Here, the same is true of the separate acts committed by defendant against the victim.
IV. DISPOSITION
The judgment is affirmed.
We concur:
Kline, P.J.
Richman, J. --------------- Notes: All further statutory references are to the Penal Code, unless otherwise indicated.