Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 195167 Frank A. Brown, Judge.
O'ROURKE, J.
A jury convicted Willie Laky Roberts of corporal injury to a cohabitant (Pen. Code, § 273.5 subd. (a), count 1); attempted false imprisonment by violence (§§ 236, 237, subd. (a), 664, count 3); and battery of a cohabitant (§ 243, subd. (e)(1), count 4). The jury found true that in the commission of count one, Roberts inflicted great bodily injury on his cohabitant. (§§ 1192.7, subd. (c)(8); 12022.7, subd. (e).)
All further statutory references are to the Penal Code.
The trial court denied probation and sentenced Roberts to 7 years and 4 months as follows: 3 years on count 1; 4 years for the enhancements; 4 months on count 3; and time already served in custody on count 4. The court also ordered restitution. In addition, the court ordered Roberts to "have no contact" with the victim for ten years.
Roberts contends his conviction for battery must be stayed pursuant to section 654; and, the no-contact order was unauthorized and must be reversed. For purposes of this appeal, he abandoned claims regarding the restitution fines. We affirm in part, and reverse in part.
FACTUAL AND PROCEDURAL SUMMARY
On October 23, 2005, Roberts and his cohabitant, Josie Armstead, had been drinking and arguing at Armstead's house, where they lived. Armstead went to sleep by herself. Roberts threw water on her face, woke her up and yelled at her. Armstead became upset, went to the bathroom and cried as she sat on the edge of the bathtub. Roberts pushed her into the tub, and she hit her head and shoulder. She tried to get out of the tub, but he pushed her back in several times. She managed to leave the bathroom; Roberts followed her and choked her. Armstead tried to push away, but he grabbed her left arm and pressed between the bones. She told him he was hurting her, and that he was going to break her arm, but he kept pressing. He broke her arm.
Roberts ordered Armstead to stay in her bedroom; forbade her from calling 911; and refused her request to see a doctor. She was afraid, and did not go to the doctor because he kept her purse, keys, I.D. money and credit card. Roberts took her to the hospital some days later. He threatened to "break" her if she got him in trouble; therefore, she told the attending nurses and doctors she had fallen,
Armstead testified that on November 22, 2005, she and Roberts again got into an argument, in part because she wanted to make a phone call and use her computer, but Roberts did not let her. She had hidden the telephone, and was trying to figure out how to get it to call the police. Roberts followed her inside and outside the house, and threatened to "break" her if she went to her neighbor's house. She tried to get her dog to take it for a walk, but he told her he would kill the dog if she left the house. Finally, Armstead decided to risk everything by going to a nearby liquor store, and asked to use the telephone. She called and was speaking with a 911 operator when Roberts entered the store. He started chasing her through the aisles. He grabbed her by the neck and told her to put down the phone. She continued talking and he grabbed her and threw the phone out of her hands. He grabbed her and tried to drag her out of the store. He screamed at her and they physically fought. Shortly afterwards the police arrived and arrested Roberts.
Roberts testified that approximately 15 minutes after Armstead went to the liquor store, he noticed that Armstead's dog was in the street. He next saw Armstead in the store; she was on the phone, saying Roberts was trying to kill her dog. Roberts was outraged because he felt Armstead was not telling the truth, and he wanted to tell his version of the events. He told Armstead something to the effect that she should give him the phone. He tried to get the phone, but it dropped. Armstead sat on the floor, and he screamed at her because she was making a spectacle of herself in public, and he wanted to take her home. He told her to get up, and was approximately an arm's length away from her, but he did not touch her.
DISCUSSION
I.
We conclude the trial court did not err in sentencing Roberts separately for assault and attempted false imprisonment convictions. When a defendant sustains multiple convictions arising out of a single act or indivisible course of conduct, section 654 permits only one punishment for the defendant's conduct. (People v. Oates (2004) 32 Cal.4th 1048, 1062.) The purpose of section 654 is to ensure that a defendant's punishment is commensurate with his or her culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)
If the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.) "The question of whether a defendant held multiple criminal objectives presents a question of fact, and an appellate court reviews the trial court's finding on this issue under the substantial evidence test." (People v. Arndt (1999) 76 Cal.App.4th 387, 397.) We view the evidence in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. (People v. McGuire (1993) 14 Cal.App.4th 687, 698.)
Substantial evidence showed Roberts' two crimes were motivated by different and independent objectives. The battery was committed as Roberts sought to control the telephone to prevent Armstead from informing the police of Roberts' earlier conduct. In contrast, according to Roberts' testimony, the object of the attempted false imprisonment was for him to get Armstead out of the store and stop embarrassing herself in public. Accordingly, there was no violation of section 654.
II.
The Attorney General concedes, and we agree, the no-contact order must be reversed. The trial court first imposed an order that Roberts stay away from Armstead, pursuant to section 136.2, on November 28, 2005, and subsequently on December 5, 2005, and at a December 7, 2005 preliminary hearing. At the sentencing hearing on March 14, 2006, Armstead informed the trial court she had obtained a 5-year civil restraining order, but requested the trial court give Roberts the maximum length possible on a no-contact order. The trial court, citing no authority, stated, "[Roberts'] not to have any contact with the victim for ten years if, in fact, I do have that power. Not to contact her directly or indirectly." This order was made a part of Roberts' sentence.
The 10-year no-contact order was not authorized by section 136.2. In People v. Stone (2004) 123 Cal.App.4th 153, 159, the trial court imposed on the appellant restraining orders for three years; they were not limited to the pendency of the criminal proceeding and were not a probation condition. The court of appeal reversed, finding the restraining orders "transcended the authorization of section 136.2." (Stone, at p. 160.) The Stone court stated, "Although section 136.2 does not indicate on its face that the restraining orders it authorizes are limited to the pendency of the criminal action in which they are issued or to probation conditions, it is properly so construed. It authorizes injunctions only by courts with jurisdiction over criminal proceedings and is aimed at protecting only 'victim [s] or witness[es],' an indication of its limited nature and focus on preserving the integrity of the administration of criminal court proceedings and protecting those participating in them." (Stone, at p. 159.) The 10-year no-contact order imposed on Roberts must be reversed.
DISPOSITION
The no-contact order against appellant is reversed. In all other respects the judgment is affirmed.
WE CONCUR: McCONNELL, P. J. McINTYRE, J.