Opinion
G057465
03-13-2020
THE PEOPLE, Plaintiff and Respondent, v. THOMAS JOHN ROMO II, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16NF3249) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed as modified. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Thomas John Romo II physically injured his girlfriend. Romo threw her off a bed, choked her, hit her in the face, and held a machete to her neck. A jury found Romo guilty of domestic battery with corporal injury, assault with a deadly weapon, and found true a sentencing enhancement. The trial court imposed a five-year sentence: four years for each charge (concurrent), and one year for the enhancement.
Romo's sole argument on appeal is that the court should have imposed and stayed the sentence as to one of the charges, rather than imposing a concurrent sentence. (Pen. Code, § 654.) The Attorney General concedes the issue and we agree. Therefore, we direct the court to impose and stay the sentence as to one of the two charges.
Further undesignated statutory references are to the Penal Code.
As modified, the judgment is affirmed.
I
FACTS AND PROCEDURAL BACKGROUND
On November 19, 2016, Romo woke his intermittent girlfriend Nicole while she was asleep on a bed. Romo grabbed Nicole by her hair and threw her onto the floor. Romo got on top of Nicole and choked her. Romo hit Nicole in the face. Romo held a machete to Nicole's neck, pressing it against her skin.
Nicole was able to get away and contact someone for help. Nicole suffered numerous injuries: bruises and swelling to her face; a popped blood vessel in her eye; and bruising and marks around her neck. Nicole did not remember how long the entire incident had lasted. Nicole was in pain for two to three weeks.
A jury found Romo guilty of domestic battery with corporal injury, and assault with a deadly weapon. (§§ 273.5, subd. (a), 245, subd. (a)(1).) The jury also found true a deadly weapon enhancement as to the domestic battery charge. (§ 12022, subd. (b)(1).) The court imposed a five-year sentence: four years for the domestic battery charge, four years for the assault with a deadly weapon charge (concurrent), and one year for the deadly weapon enhancement.
II
DISCUSSION
"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).) Section 654 prohibits a defendant from receiving multiple punishments where multiple crimes arise from a single act, or from an indivisible course of conduct. (People v. Hicks (2017) 17 Cal.App.5th 496, 514.) The statutory prohibition against multiple punishments ensures that a defendant "is not punished more than once for what is essentially one criminal act." (Ibid.)
Whether a course of conduct is continuous, and gives rise to multiple acts within the meaning of section 654, primarily depends on the intent and the objective of the defendant. (Neal v. California (1960) 55 Cal.2d 11, 19.) If all the crimes were incident to one objective, then a defendant may only be punished for the crime that carries the greatest possible punishment. (People v. Chung (2015) 237 Cal.App.4th 462, 467-468.) As far as subordinate crimes, "the trial court must impose a full term and stay execution of that term." (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198.)
Here, there is no dispute that Romo's assault with the machete, and the domestic battery to Nicole causing her corporal injuries, were both committed during one continuous course of conduct with the same criminal objective. Indeed, during closing argument, the prosecutor described Romo's assault with the machete as part of the continuous course of conduct constituting the domestic battery: "Now, as to count 2 [domestic battery with corporal injury], I'd like you to think of Count 2 as the umbrella charge. Okay. It encompasses everything that the defendant did to Nicole that causes the slightest physical injury. [¶] So, when he beat her with his fists, . . . when he strangled her, when he put the machete against her neck, and when he held her down causing the bruises, all of that is the basis of Count 2." (Italics added.)
Further, when imposing the concurrent four-year (upper) terms as to both charges, the court said that "it was all a continuing course of conduct." Thus, under section 654, the court should have imposed and stayed the four-year term as to one of the charges, rather than imposing a concurrent sentence. (See People v. Relkin, supra, 6 Cal.App.5th at pp. 1197-1198.)
Since both charges designate an upper term of four years, it is immaterial which charge the court may choose to stay. (See §§ 273.5, subd. (a), 245, subd. (a)(1).) --------
III
DISPOSITION
We direct the trial court to stay Romo's sentence as to one of the two convictions. The court is further directed to modify the abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
MOORE, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.