Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE260143, Charles W. Ervin, Judge.
AARON, J.
I.
INTRODUCTION
Defendant Matthew Lynch appeals from a judgment of conviction and sentence. A jury convicted Lynch of kidnapping, corporal injury to a spouse and/or cohabitant, false imprisonment, making a criminal threat, and misdemeanor spousal/cohabitant battery.
On appeal, Lynch contends (1) that there was insufficient evidence that he and his fiancée, Erin McGowen, were cohabiting within the meaning of Penal Code section 273.5 ; (2) that his conviction for false imprisonment must be reversed because false imprisonment is a lesser included offense of kidnapping, for which he was also convicted; and (3) that his sentences on counts 3 and 4 must be stayed pursuant to section 654 because the threats were part of an indivisible course of conduct, i.e., the kidnapping of McGowen.
Further statutory references are to the Penal Code unless otherwise indicated.
Lynch also originally raised a claim that the trial court erred in excusing a juror and substituting an alternate juror without then instructing the jury to begin deliberations anew. However, after reviewing the record further, Lynch requested that he be permitted to withdraw that argument as moot. We granted this request on September 14, 2007.
We conclude that there is sufficient evidence to support the jury's finding that Lynch was guilty of inflicting corporal injury on cohabitant. We further conclude, and the People concede, that Lynch's conviction for false imprisonment must be reversed because the offense is necessarily included in his kidnapping conviction. Finally, we conclude that the trial court failed to determine whether the sentence on count 4 should be stayed pursuant to section 654, and that the case must be remanded for the trial court to make this determination.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution case
At the time of the offenses, McGowen was Lynch's fiancée. The two had known each other for nine years, and had started a romantic dating relationship in December 2004. McGowen and Lynch broke up for a short period in January 2006, but got back together in February 2006. At that time, McGowen was living with a roommate, Victoria Hernandez, in La Mesa. Lynch was living in Lakeside, and was in the process of moving from his parents' house into another house in Lakeside with two roommates. McGowen testified that she and Lynch had planned that she would move in with Lynch, because her roommate was going to raise the rent, and she already had a lot of clothes at Lynch's residence.
At trial, McGowen described the incident underlying the charges against Lynch quite differently from how she had described the incident to others, including police officers, immediately after it occurred. As McGowen relayed at trial, Lynch had planned to pick up McGowen from her place of work, Aztec Tattoo in La Mesa, at approximately 8:30 p.m. on March 22, 2006. McGowen had stayed overnight at Lynch's house every night for the preceding two weeks, and had not gone to her own residence during that time. McGowen was upset on the evening of March 22 because she had just learned that Lynch had gotten another woman pregnant. McGowen got a ride home with someone else, and arrived at her La Mesa home at about 8:45 p.m. Hernandez and Hernandez's nine-year-old daughter were at home when McGowen arrived.
Keith Grulli, a friend of McGowen's, arrived at McGowen's home at about 9:15 p.m. Lynch called McGowen a number of times that night. Lynch admitted that he had gotten another woman pregnant. He told McGowen that he was going to come over to her house. McGowen told him not to come, but Lynch drove to McGowen's house anyway. After he arrived, McGowen went outside to talk with him. She asked Grulli not to get involved.
As McGowen and Lynch were walking toward Lynch's truck, they began to argue about the woman Lynch had gotten pregnant. Lynch asked McGowen about a truck that was parked in front of her house, and McGowen told him that the truck belonged to her friend, Grulli. Although McGowen testified that Lynch was not happy that Grulli was at her house, she said that he was "calm" when he asked her about Grulli, and that she was the one who was angry during the conversation. During her testimony, McGowen said that Lynch was reacting to her yelling at him, and not to Grulli's presence at her home.
McGowen testified that she willingly got into Lynch's truck, even though she had told him that she did not want to get in. According to McGowen, she was playing a "game." She said she got into the truck on the driver's side because a tree was blocking the passenger door.
At trial, McGowen testified that she and Lynch were talking loudly, but said that there was no physical contact between them, except when Lynch was trying to calm her down. She told him not to touch her. After a minute, they drove away and McGowen started to calm down. Lynch drove past the exit to his house in Lakeside. At trial, McGowen denied that Lynch threatened her in any way. McGowen essentially disavowed any earlier versions she had related to others about the incident, and claimed that she had been making up things.
At trial, McGowen testified that she started drinking on the morning of March 23, was late for work, and felt that she had to make up a story to explain her tardiness to her boss. McGowen acknowledged that she was crying and acting angry and emotional, but explained that she gets very "theatrical" when she drinks. McGowen also testified that she had made up the story of the assault because she was jealous, angry and drunk. She said that she only wanted Lynch to go to jail for a few days or to attend domestic violence classes, or something that would "hurt him bad like I felt inside."
McGowen acknowledged that on March 27, she went to see a doctor about the "uncontrolled pressure" in her head. At trial, McGowen said that her headache was the result of a "really severe sinus infection." However, McGowen later admitted that she initially went to visit an urgent care clinic, and that someone there told her to go to an emergency room. She further admitted that she had told all of the doctors she saw that she was there because "my boyfriend had beat me up and I thought that there was something wrong with my head."
McGowen's boss, Pedro Martinez, had to open Aztec Tattoo on March 23 because McGowen was late. When McGowen arrived at work, Martinez noticed that she appeared visibly upset. McGowen had Martinez feel lumps on her head and showed him a bruise on her breast. McGowen told Martinez that Lynch had pulled her into his truck and drove her east, where he proceeded to beat her. She told Martinez that Lynch said he wanted to kill her, and that she had seen a gun in Lynch's possession. According to Martinez, McGowen did not appear to be intoxicated, and she did not smell of alcohol. Martinez suggested that McGowen call the police, which she did.
An officer with the San Diego Police Department took a "domestic violence" report from McGowen that day. McGowen appeared to be "emotionally upset," and she teared up when the officer asked if she was hurt. McGowen had a number of apparent injuries, including bumps on her head, bruising, and a red mark on her face that looked as though it was the result of a slap. She did not appear to be intoxicated, but the officer did notice a "faint odor of alcohol." McGowen told the officer that Lynch had come to her home and asked her about a pickup truck that was parked nearby. She said that Lynch then grabbed her in a headlock, walked her down the street and around the corner to his truck, and forced her inside the vehicle. McGowen told the officer that Lynch drove her to a parking lot far away, where he punched her in the breast and beat her on the head with his fists. She said that Lynch told her that if she tried to escape, he would shoot her in the back, adding, "'You know what I have under the seat.'" McGowen had seen Lynch with a Tech 9 automatic gun and thought that was what Lynch was referring to when he threatened her. She also told the officer that she had gone with Lynch to his home that night and slept there.
On March 27, 2006, a detective with the La Mesa Police Department interviewed McGowen at her mother's home. McGowen relayed a story similar to the one she told the other officer on March 24. She reaffirmed that Lynch dragged her to his truck against her will, and that Lynch opened the driver's side door and pushed her inside. According to McGowen, Lynch drove her to a church parking lot in Alpine, where they stayed for approximately four and a half hours. She said that they argued and Lynch hit her several times, threw his cell phone at her, and spat in her face. McGowen told the detective that Lynch "told her that if she was going to get out of the vehicle, he would shoot her." McGowen took the threat seriously because she had seen Lynch in possession of a firearm.
McGowen said that at one point during the argument "she got out of the vehicle to urinate on the side of the road, and that he [Lynch] had told her if she tried to get away, he would run her over with the truck." McGowen also told the detective about another incident that occurred in July 2005, in which Lynch drove her to East County, threatened that she "was going to bleed that day," and gave her a split lip, bloody nose, and bumps on her head.
At trial, McGowen testified that many of the things she told the detective were untrue.
McGowen agreed to go with the detective to the La Mesa Police Department so that the detective could record a telephone call to Lynch. The recording was played at trial. During the discussion, McGowen said, "I made you hit me? I made you hit me?" Lynch replied, "Um, Erin, do you know what? I've told you uh, time and time again. If you're gonna look me in the face and lie to me? Somethin's gonna happen." The two argued, and Lynch repeatedly stated that McGowen had been lying to him and accused her of cheating. Lynch denied that he had punched her in the breast when she questioned him about it, saying that he had only pinched her.
Hernandez testified that Lynch occasionally spent the night with McGowen at Hernandez's residence. A few weeks before the incident, Hernandez decided that she would no longer allow Lynch to come to her house after she saw Lynch push McGowen, throw McGowen's cellular telephone at her, and then attempt to push in the front door to their residence after McGowen ran inside. Hernandez would not allow Lynch to enter the home, and she told him that he was not welcome after that. Hernandez also recounted a time a few weeks before the incident when McGowen had returned home "black and bruised and said that [Lynch] beat her up."
Hernandez had heard Lynch threaten McGowen over the telephone. Hernandez testified that she overheard a telephone conversation between McGowen and Lynch during which Lynch told McGowen that he would kill her and bury her body where nobody would find it. McGowen had held the telephone in such a way that Hernandez was able to hear Lynch yelling at McGowen.
2. The defense case
Cynthia Croft, McGowen's mother, testified that McGowen is often not truthful as a result of her drug and alcohol abuse. According to Croft, McGowen lies to people and has injured herself at times to serve her own purposes.
Marjorie Fugate, an acquaintance of both McGowen and Lynch, talked with McGowen on the day after the incident. Fugate testified that McGowen told Fugate three different stories about what had occurred the previous day. According to Fugate, McGowen said that she had made up the story she told others about the events, acknowledging that she wanted Lynch to get a slap on the wrist and a couple of days in jail. McGowen was angry with Lynch because he had gotten another woman pregnant.
One of Lynch's roommates testified that on the night of March 22, 2006, McGowen did not say anything about being injured when she and Lynch returned to the house. The roommate did not notice any injuries on McGowen. Another roommate testified that McGowen did not appear to be afraid, and said that she could have left the house if she had wanted to.
McGowen testified that when Lynch said something to her about three women being buried in the desert and suggested that he was going to put her there, she did not believe him, and was not afraid.
Lynch testified on his own behalf. He claimed that McGowen lived with Hernandez, not with him. Lynch's version of the relevant events generally followed the story that McGowen gave during her testimony. He denied that he had been upset about Grulli's presence at McGowen's residence. He also denied that he had forced McGowen into his truck, that there was a gun under the seat of his truck, or that he had threatened to shoot McGowen. Lynch further denied that he had hit McGowen, that he spat on her, that he threw her cellular phone at her (although he admitted that he threw the telephone onto the dashboard), or that she was afraid of him.
B. Procedural background
An information filed May 17, 2006 charged Lynch with kidnapping (§ 207, subd. (a); count 1); two counts of corporal injury to a spouse and/or roommate (§ 273.5, subd. (a); counts 2 and 5); false imprisonment by violence, menace, fraud or deceit (§§ 236, 237, subd. (a); count 3); and making a criminal threat (§ 422; count 4).
On July 28, 2006, a jury convicted Lynch of counts 1, 2, 3, and 4. The jury found Lynch not guilty on the offense charged in count 5, but found him guilty of the lesser-included offense of misdemeanor spousal/cohabitant battery (§ 243, subd. (e)(1)).
On January 4, 2007, the trial court sentenced Lynch to an aggregate term of four years in state prison. The sentence consisted of the lower term of three years on count 1; one year (one-third the midterm), consecutive, on count 2; two years (the midterm), concurrent, on count 3; two years (the midterm), concurrent, on count 4; and 222 days in local custody for the lesser included offense associated with count 5.
The court credited Lynch with more than 222 days of custody credits.
Lynch filed a timely notice of appeal on January 31, 2007.
III.
DISCUSSION
A. There is sufficient evidence to support the jury's conclusion that McGowen and Lynch were cohabitants
Lynch contends that there is insufficient evidence to support the jury's verdict on count 2, corporal injury to a spouse or cohabitant, because, he claims, there "was no evidence that he [Lynch] was cohabiting with Erin McGowen."
Section 273.5 provides, in pertinent part:
"(a) 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, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.
"(b) Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this section."
In determining the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Lynch suggests that the People relied on the fact that Lynch and McGowen had a "substantial relationship" as a means of meeting the statutory requirement that McGowen was his cohabitant. He contends that the statute requires more than the existence of a "substantial relationship," and asserts that in order to establish that the defendant and victim were "cohabitants," there must be proof that they lived together at the time of the offense. According to Lynch, the "uncontradicted evidence in this case established that McGowen and appellant were not living together."
The trial court instructed the jury with CALCRIM No. 840, and provided the jury with a definition of "cohabitants." Specifically, the court instructed:
"[The term cohabitants means two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties' holding themselves out as (husband and wife/domestic partners), (5) the continuity of the relationship, and (6) the length of the relationship.]
[A person may cohabit simultaneously with two or more people at different locations, during the same time frame, if he or she maintains substantial ongoing relationships with each person and lives with each person for significant periods.]" (Punctuation and formatting in original.)
Lynch does not challenge the trial court's instruction, apparently conceding that it is a correct statement of the law. Lynch contends, however, that in all of the relevant cases that the People cite, there was "evidence that the parties in question actually lived together, or 'cohabited[,]'" and he asserts that there was "no evidence that McGowen and [he] lived together." We disagree with Lynch's depiction of the state of the evidence, particularly when it is considered in the context of the meaning of "cohabitant" in section 273.5.
"The term 'cohabitant' has been interpreted 'broadly' to refer to those '"living together in a substantial relationship—one manifested, minimally, by permanence and sexual or amorous intimacy."' [Citations.] 'The element of "permanence" in the definition refers only to the underlying "substantial relationship," not to the actual living arrangement.' [Citation.] Permanence does not require exclusivity in either the relationship or the living arrangement. [Citation.] '[F]or purposes of criminal liability under section 273.5, a defendant may cohabit simultaneously with two or more people at different locations, during the same time frame, if he maintains substantial ongoing relationships with each and lives with each for significant periods.' [Citation.]" (People v. Taylor (2004) 118 Cal.App.4th 11, 18-19 [conviction upheld where the victim lived with the defendant in his car "for periods of time when she was homeless and had no other place to stay"]; quoting People v. Moore (1996) 44 Cal.App.4th 1323, 1334-1335 [conviction upheld where defendant "maintained substantial relationship with two women in different locations"] and People v. Holifield (1988) 205 Cal.App.3d 993, 995 [conviction upheld where defendant and victim "had been seeing each other 'off and on' for four years[,]" defendant stayed in at least three other places for weeks at a time, took his possessions when he left, and did not have a key to the victim's residence] (Holifield); see also People v. Ballard (1988) 203 Cal.App.3d 311 [rejecting vagueness challenge to section 273.5 and concluding that the defendant and victim had been cohabiting even though the defendant maintained his own apartment].)
McGowen testified that she and Lynch would stay together "at least three" times a week when he was staying at his parents' house. McGowen would "take clothes over [to Lynch' parents' house] so [she] would have something new to wear in the morning." When Lynch moved into a house with roommates in Lakeside, McGowen left "a lot of clothes" and "stuff" at his place, including everything she needed to "get ready to go to work." McGowen testified that she "was staying there [i.e., the house Lynch was sharing with roommates] a lot." She would "get up at his place and get ready to go to work." McGowen would go to work from Lynch's place. She would sometimes "go back straight to [Lynch's] place" after work. Further, and most significant, McGowen testified that she had stayed with Lynch every night for the two weeks prior to the incident:
"Q. You were staying with [Lynch] at night on a regular basis; is that correct?
"A. Yes. The previous two weeks before the 22nd like I was there every night.
"Q. Okay. But you were still maintaining the residence at Victoria Hernandez's place?
"A. I guess you could call it maintaining. I wasn't really there, but I would talk to her, like, every other day or something . . . ."
This constitutes sufficient evidence to support the jury's conclusion that McGowen and Lynch were cohabiting. The fact that McGowen may have maintained a residence in the apartment with Hernandez does not mean that she was not cohabiting with Lynch. "In . . . the leading cases, the appellate courts upheld findings that the defendants cohabited with their victims even though in neither case was the victim's home the defendant's sole residence." (Moore, supra, 44 Cal.App.4th at p. 1334.) Although the relevant cases have focused on the living arrangements of the defendant vis-à-vis the victim (see Holifield, supra, 205 Cal.App.3d at pp. 995-996; Ballard, supra, 203 Cal.App.3d at p. 314), we see no reason to apply a different meaning of cohabitation when considering the victim's living arrangements vis-à-vis the defendant. It is the nature of the living arrangement between the defendant and the victim that is at issue for purposes of determining whether the defendant and the victim were cohabiting; in some situations, the defendant might be the party who maintains multiple residences, while in others, it may be the victim who does so. There is no logical reason to impose liability under section 273.5 in one scenario, but immunize a defendant from such liability in the other.
We conclude that there is sufficient evidence to support the jury's conclusion that McGowen was cohabiting with Lynch at the time he committed the offenses in this case.
B. The conviction in count 3 must be reversed because false imprisonment is a lesser included offense of kidnapping
Lynch asserts that this court must reverse or vacate his conviction for false imprisonment because false imprisonment is a lesser included offense of kidnapping, and the conduct underlying his conviction for that offense is the same as that underlying his conviction for kidnapping. The People agree with Lynch on this issue.
We agree that false imprisonment is a lesser included offense of kidnapping. (People v. Chacon (1995) 37 Cal.App.4th 52, 65 [false imprisonment lesser included offense of kidnapping for ransom]; see also People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121 [false imprisonment is lesser included offense of kidnapping].) The trial court should therefore have stricken the false imprisonment conviction. We reverse Lynch's conviction on count 3. (See People v. Medina (2007) 41 Cal.4th 685, 702 [reversing lesser included offense conviction].)
C. The trial court failed to make a finding under section 654
Lynch contends that the sentence imposed on count 4 must be stayed pursuant to section 654, rather than served concurrently with the sentence on count 1. He contends that the kidnapping and criminal threats had a single objective, that is, to forcibly deprive McGowen of her liberty.
Lynch makes the same argument with regard to count 3. Because we agree with Lynch that his conviction on count 3 must be reversed, we need not consider this alternative argument as to count 3.
Section 654, subdivision (a) provides:
"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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
Section 654 "precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294.) To determine whether a course of conduct is indivisible, a court considers the intent and objective of the defendant. If all the criminal acts were incidental to a single criminal object, then the court may impose punishment only as to one of the offenses. (People v. Beamon (1973) 8 Cal.3d 625, 636-637.) However, a court may impose separate punishments for offenses that have similar, but consecutive and different objectives, or simultaneous, but separate objectives. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.) "'The defendant's intent and objective are factual questions for the trial court; . . . [T]here must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]' [Citation.]" (People v. Coleman (1989) 48 Cal.3d 112, 162.) A trial court's determination that a defendant holds multiple criminal objectives will be upheld on appeal if it is supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
The People contend that in making the criminal threat, Lynch harbored a different objective than his intent to kidnap McGowen. Contending that Lynch made the criminal threat after he "had had time to reflect on his actions" (i.e., the kidnapping), the People assert, without further explanation, that "the intent underlying the gratuitous threat to shoot McGowen or run over her with the truck, if she tried to escape, was divisible from the intent to kidnap."
As an initial matter, our examination of the record suggests that the trial court did not make any factual finding as to whether Lynch harbored distinct objectives with regard to the offenses charged in counts 1 and 4. California Rules of Court, Rule 4.424 requires that the trial court make findings pursuant to section 654 prior to making any determination as to whether to impose consecutive or concurrent sentences:
"Before determining whether to impose either concurrent or consecutive sentences on all counts on which the defendant was convicted, the court must determine whether the proscription in section 654 against multiple punishments for the same act or omission requires a stay of imposition of sentence on some of the counts."
Comments made by the prosecutor and by the court indicate that the court attempted to sidestep the section 654 issue by imposing a concurrent sentence on count 4. In arguing for a shorter sentence than the sentence proposed in the probation report, the prosecutor stated:
"So the question, in the People's opinion, the only question is: How much custody, prison time, should the defendant get? The probation department is recommending eight years, eight months. I am going to take a more conservative approach to that. With respect to the 654 issue and Rule 4.424 issues, I believe to err on the side of caution. Count one, count three and count four could be, arguably, and should be, consecutive ─ I'm sorry, concurrent. And the reason for that, the way I argued it in closing argument, it is not clear what the jury ultimately decided. The kidnap, for instance, could consume all of those two other charges.
"Certainly, we all know as he grabbed her and started dragging her down the street, the kidnap was complete when he put her in the truck. That is a continuation of this. And of course, driving her up into East County against her will is a continuation, arguably.
"Along those lines, and certainly part of the objective, was threatening her. 'You can't get away now,' 236, 237 arguably could be the same conduct. It wasn't argued clear enough to say that those are independent and separate acts, with separate purposes." (Italics added.)
In imposing sentence, the trial court stated, "With respect to counts three and four, I do concur with the People's comments pursuant to 654 and the rules of court that the court may impose that as concurrent, and I do so, adopting one-third the middle term for each of those two counts, either months each, running concurrent with that imposed in count one."
The trial court failed to make any finding as to whether, in making a criminal threat, Lynch had a criminal objective different from his objective in kidnapping McGowen. The People concede that the trial court failed to make the necessary determination: "[T]he trial court did not make specific findings that section 654 did or did not apply to the sentence for criminal threats." This was error. Although the court imposed the sentence on count 4 to run concurrently with the sentence on count one, thereby creating a result that in many practical respects would be similar to the effect of staying imposition of sentence under section 654, the court should have made a determination as to whether it could impose punishment on this count under section 654 before making any determination as to whether the sentence was to run concurrently with, or consecutively to, another sentence. (See Rule 4.424; see also People v. Deloza (1998) 18 Cal.4th 585, 594 ["[S]ection 654 is irrelevant to the question of whether multiple current convictions are sentenced concurrently or consecutively. . . . Section 654 does not allow any multiple punishment, whether concurrent or consecutive."].)
With respect to how to remedy the error, if there is sufficient evidence to support a finding by the trial court that Lynch had a new and distinct criminal objective when he made the criminal threat or threats, then the appropriate remedy is to remand the case to the trial court to give the court the opportunity to make a finding on the section 654 issue. "[T]he appellate court is not in a position to do what the trial court failed to do. Since the divisibility of the transaction depends in part upon the intent of the defendant, a factual issue is presented. It is the function of the trial court, after seeing and hearing the witnesses, to determine this factual matter which controls the number of sentences to be imposed. A reviewing court is not the place to try facts." (People v. Scott (1966) 247 Cal.App.2d 371, 375-376.)
As was noted by the prosecutor, although the jurors were instructed with a unanimity instruction related to the criminal threat charge, it is impossible to know which of the statements may have formed the basis for the criminal threat guilty verdict on this record because there is no indication of the jury's thinking in this regard.
We conclude that there is sufficient evidence to support both a finding that Lynch entertained separate criminal objectives and a finding that he did not. As a result, this court cannot determine as a matter of law that the criminal threat was or was not part of an indivisible course of conduct. For example, McGowen's boss, Martinez, testified that McGowen told him that Lynch had said to her that he "wanted to kill her," without reference to any attempt to prevent her from escaping from him. The following colloquy occurred at trial between defense counsel and Martinez:
"Q. Did she say she saw the gun?
"A. She said she did see the gun.
"Q. Okay. Did she say that he threatened to shoot her with it?
"A. She said that when they were driving out in East County somewhere, or in the hills or something, that he had said that he wanted to kill her.
"Q. He told her he wanted to kill her?
"A. That is what she said to me.
"Q. Okay. Now, did she tell you that this was before or after he stopped the truck so she could urinate?
"A. I didn't hear anything about urination.
"Q. So she didn't say she stopped to relieve herself along the road?
"A. No."
Based on this testimony, a trial court could conclude that Lynch formed a separate criminal intent for the threat offense, such that the criminal threat was not part of an indivisible course of criminal conduct for the purpose of kidnapping McGowen. However, there was also evidence that Lynch's threats were part of a single objective—that is, to kidnap McGowen and keep her under his control throughout the kidnapping. A police officer testified that when McGowen related the story, she said that Lynch told her that if she tried to escape, he would shoot her in the back. A detective testified that McGowen said that Lynch "told her that if she was going to get out of the vehicle, he would shoot her." McGowen also told the detective that "she got out of the vehicle to urinate on the side of the road, and that he [Lynch] had told her if she tried to get away, he would run her over with the truck." Based on this testimony, a trial court could conclude that any criminal threat was merely incidental to the kidnapping.
Because the state of the evidence does not support a determination as a matter of law on the issue whether Lynch did, in fact, entertain multiple criminal objectives that were independent of, and not incidental to, each other with respect to the kidnapping and the criminal threat, there remains a question of fact for the trial court to consider on remand. We therefore reverse the sentence on count 4 and remand the case to the trial court to determine whether a stay of the sentence on that count is required under section 654.
IV.
DISPOSITION
The conviction on count 3 is reversed and the concurrent sentence imposed on count 4 is reversed. On remand, the trial court is directed to vacate Lynch's conviction on count 3 and to determine whether section 654 requires a stay of the sentence on count 4. In all other respects, the judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., IRION, J.