Opinion
F072084
05-16-2018
THE PEOPLE, Plaintiff and Respondent, v. JASIEL SALMERON, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tulare Super. Ct. No. VCF302845)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Jasiel Salmeron was convicted of corporal injury and false imprisonment of his former girlfriend and felony criminal threats and misdemeanor child abuse committed against his two children. He was sentenced to the second strike term of 16 years four months.
On appeal, defendant argues the court improperly instructed the jury about the consideration of the children's testimony; the court's imposition of sentence for both corporal injury and false imprisonment violated Penal Code section 654; and the matter must be remanded for the court to clarify a protective order and whether it also applied to the two children.
All further statutory citations are to the Penal Code unless otherwise indicated.
We will remand the matter for resentencing and clarification of the protective order, and otherwise affirm.
FACTS
As of 2014, V.G. had been having an on-and-off dating relationship with defendant, her boyfriend, for 10 years. They were the parents of five children. V.G. had a prior felony conviction for moral turpitude in 2014 or 2015.
V.G. testified that they had purchased a minivan from Jose Ortega about a year earlier, but it never passed a smog test so the title remained in Ortega's name. Both V.G. and defendant used the minivan when they lived together. V.G. kept the minivan when defendant moved out. Defendant also testified that they purchased the minivan together and they both used it, but it was never registered in their names because it did not pass the smog test. Defendant arrives
On the evening of July 3, 2014, V.G. and her children were at their apartment. Defendant had been living with them until about three or four days earlier, but he had not been there that day. V.G. knew that defendant was living with a new girlfriend and having a relationship with her.
Around 8:00 p.m., V.G. went outside to throw away the garbage. As she went back into her apartment, defendant suddenly appeared and walked in with her. V.G. was scared when she saw defendant. Defendant looked calm. He said he was not there to hurt her; he just wanted to get his things and leave. Defendant hits V.G.
V.G. testified that she gathered defendant's things and asked him to leave. Defendant became angry, took away her cell phone, and acted weird. V.G. started to cry. Defendant hit V.G. in the face, arms, ribs, and legs. V.G. told him to stop and to just leave the house.
V.G. testified defendant dragged her into the bedroom by her hair. Defendant produced a rope and tied up V.G. Defendant told A.G., their eight-year-old child, to help him tie up V.G. Their other children were also in the room, and defendant told them that he was not there to hurt anyone. Defendant covered the windows and poured dish soap all over the tile because he thought the police were coming.
V.G. was crying. Defendant told her to be quiet because the neighbors were going to hear, and he hit her again.
V.G. testified she was tied up for a few hours. Defendant eventually untied her, but made V.G. and the children stay in the bedroom. Defendant leaves with two children
Around 6:00 a.m. on July 4, 2014, defendant took the keys to the minivan from V.G. V.G. struggled with defendant for the keys, but defendant got them. Defendant said he was leaving and taking two of their children, A.G. and seven-year-old J.G. V.G. said no, but defendant left in the minivan with the two children.
V.G. had suffered bruises on her eye, face, arm and legs.
V.G. testified that she found out defendant took the children to visit his new girlfriend. V.G. was not happy about that. She knew where the woman lived but did not go there. V.G. testified she decided not to call the police because she was scared of defendant and wanted to give him time to return the children. V.G. calls 911
V.G. testified that she eventually called 911 around midnight and reported what had happened.
In the 911 recording, V.G. told the dispatcher that defendant took her two kids with him, he had been gone all day, and she did not know where he was. V.G. said defendant took the car keys away from her "and he beat me up earlier. I was scared to call the police and I have no other choice and they haven't come back." V.G. said she was waiting for defendant to return with the children, but he never did. V.G. said he was driving a Nissan Quest minivan, he was "running around with somebody else and he has both of my kids in there and I'm like really scared of him." She had no idea where he was. V.G. said defendant had gotten away from the police before.
Just after midnight on July 5, 2014, Visalia Police Officer Muto responded to V.G.'s apartment after her 911 call. Muto testified that V.G. was crying, shaking, and very fearful. She had swollen cheeks, a bruise on the left cheek, and a bruise and small cut on her left arm. V.G. said defendant inflicted the injuries. Defendant and the two children were not present at the apartment, and Officer Muto left the area. Defendant returns
V.G. testified that defendant later returned to her apartment with the two children. He parked the minivan around the corner, and walked up to the apartment with the children. V.G. grabbed the children, ran to her neighbor's apartment for help, called 911, and reported that defendant had returned.
At 2:20 a.m. on July 5, 2014, Officer Muto responded to the dispatch that defendant had returned to V.G.'s apartment. Muto testified that defendant was standing in the middle of road in front of V.G.'s apartment. He was wearing shorts but no shirt. Muto approached defendant, defendant made eye contact with him, and then defendant ran away and jumped fences. Muto called for backup assistance to set up a perimeter in the neighborhood.
In the meantime, one of V.G.'s neighbors chased defendant and used pepper spray on him.
Officer Muto found defendant in a residential backyard, curled up on the ground next to a toy playhouse. Defendant was still suffering from the neighbor's blast of pepper spray. Muto took defendant into custody. The investigation
Officer Muto testified that defendant said he fled when the police arrived because he knew he had an active warrant. Defendant said he had been living with V.G. for the previous two months, even though there was an active restraining order against him, because V.G. allowed him to visit.
Officer Muto checked the computer database and determined there was no type of restraining order that barred defendant from being with his children.
Officer Muto spoke separately to the two children, J.G. and A.G. There were no apparent injuries on the children. Muto testified J.G. said defendant told her that she was "supposed to lie to mom about what happened. If you tell her the truth, I'll kill you guys." J.G. was frightened, and told Muto that she was "really scared" of her father.
After speaking with Officer Muto, both children led him to the Nissan minivan that defendant used that night. The children showed Muto that a large Panasonic television was in the back of the minivan, along with a remote control and cables. The children said defendant took the items and they were possibly stolen.
V.G. told Officer Muto that she owned the minivan. However, Muto checked the registration for the Nissan minivan and determined Ortega was the legal owner.
Around 4:00 a.m., Officer Muto checked with the police departments of Visalia and Tulare and could not confirm if any of the property in the minivan had been reported stolen. The children's pretrial statements
On September 26, 2014, J.G. and A.G. were separately interviewed by the Child Abuse Response Team (CART), and the videotaped interviews were played for the jury.
J .G.'s interview
J.G. said defendant had done "a lot of bad things to my mommy. He hits her, and ... keeps on hitting her and he gets out of jail, and he's just going to keep on hitting her. In front of us 'cause I lived there a lot, when my dad was here." J.G. said defendant had once punched the walls at her grandma's house. Defendant hit V.G. with cables and hangers. J.G. said defendant had hit her hand and hit her brother with his belt.
J.G. was asked about the last time she saw defendant. J.G. said she woke up in the morning, and V.G. was lying down and tied up with string on her feet and tape on her mouth. J.G. asked defendant why her mother was tied up, and defendant said, "No reason." Defendant pulled the tape off V.G.'s mouth and said he was going to take the kids out to eat. V.G. said no and defendant said, "F you, I can take them out if I want."
Defendant took J.G. and A.G. to meet his new girlfriend, and told them that he was keeping that a secret from V.G. J.G. said defendant bought food for the girlfriend's kids but not for J.G. and A.G. Defendant took them to a house with a pool, and a lot of kids were there. J.G. said defendant "stole a huge TV," then told the children that it was time to go. J.G. said she told the police about the stolen television.
A .G.'s interview
A.G. said defendant "kidnapped us all day." Everything started when defendant ran into their home at night and moved the couch to block the door. Defendant said he had hidden a gun and was going to pick it up. Defendant told the children to go into the bathroom. A.G. "fell asleep quick 'cause I wanted it to be all over." In the morning, defendant and V.G. argued about the cell phone. Defendant took A.G. and J.G. and left in the minivan. He took them to a lady's house and she was really nice. They went to another house that had a pool, and they played with other children.
A.G. said defendant took the lady back to her house, then they returned to the house with the pool, "and we broke in, I didn't want to go in but my dad kept saying 'Come here, come here.' "
A.G. said they were "taking things and they even told me and [J.G.] to take things." Defendant said, " 'If anyone comes out, I'm going to kill them.' " They left with a television and a lot of food and other things. After that, defendant walked around and he was "snooping around people's yards, taking money." A.G. said that he wanted to go home, and defendant hit him with a key.
A.G. said defendant told the kids not to tell their mother what happened or " 'I'm going to kill your mom.' " Defendant took them home, and the neighbor sprayed defendant with pepper spray.
A.G. said there were other incidents when defendant hit V.G. really hard. Defendant would tell A.G. to get the duct tape, and he would tie up V.G. and put a shirt in her mouth. It happened when they were at their grandmother's house. Defendant never tied up A.G., but he had hit him all over his body. Additional prosecution testimony
At trial, V.G. testified she was scared of defendant and felt uncomfortable testifying.
A.G., who was eight years old at the time of trial, testified that when they were at the house with the pool, defendant "wanted us to grab something. And then when we were leaving, we grabbed things and left," and took a television. The house belonged to defendant's friend. A.G. thought "the person who lived there was letting him get things," but the person did not say anything about it. After that, defendant dropped off other people, and then they went home.
A.G. testified that when defendant took the children from the house with the pool, "he said if I told my mom, then he would hurt her," and that made A.G. scared. A.G. testified he was a little scared to testify.
A.G. testified he had never seen defendant hit his mother, but he knew it happened because "when she would walk out of the room, there would be, like, things on her feet or her legs...." Some of these things "became scars and some of them just went away." A.G. had seen these marks on her legs.
J.G. was also eight years old at the time of trial. She was not scared to testify. J.G. remembered what happened around the Fourth of July, when defendant arrived at their home. Defendant got mad at V.G. and told the children to leave the room. V.G. was crying, and she told the children to leave "because she didn't want us to see this. Because when we see stuff, we kind of like cry." Defendant hit V.G. with cables and a hanger and tied her up with tape. J.G. went into the bathroom and fell asleep, "and I waited until tomorrow." J.G. testified she had previously seen defendant hit her mother but had not "kept track" of how many times it had happened.
J.G. testified defendant took the children for "a long day" in the minivan. They went to "this girl's house and we bought pizza." They went swimming at someone's house, and they had fun. J.G. remembered that defendant took a television from the house where they had been swimming. Defendant took them home at night. J.G. testified defendant did not tell her that he would hurt V.G. Prior domestic violence incidents
The prosecution introduced evidence about several prior domestic violence incidents. V.G. testified that in October 2007, when she was 19 or 20 years old, they were living in Stockton. Defendant got mad at V.G. because she woke him up. He hit her in the eye and arms. She called the police and reported the incident.
Stockton Police Officer Diguilio testified he investigated the October 2007 incident. V.G. had redness, swelling, and a slight laceration around her right eye and bruises on her arm. V.G. said defendant had inflicted the injuries. Diguilio took photographs of V.G.'s injuries, and defendant was arrested for a domestic violence incident.
V.G. testified about another incident in November 2009, when defendant got into a fight with his father. Defendant punched V.G. in the face, leaving a lump under her eye. Defendant later climbed into her car, took the keys out of the ignition, and left. V.G. also reported this incident to law enforcement.
V.G. testified about an incident in July 2013, when they were in Manteca. Defendant repeatedly punched her because she was talking on her cell phone with a man, and he did not like it. V.G. suffered a cut lip and bruises on her arm, back, and legs. She called the police and reported the incident.
Manteca Police Officer Cavin testified that he responded to V.G.'s call; she was pretty upset and nervous. She had a swollen lip, small cuts inside her lip, and several bruises on her legs. Defendant was later taken into custody by the police.
V.G. testified that in June 2014, shortly before the charged crimes, defendant took a car that belonged to V.G.'s mother without permission. Defendant returned in the car and gave the keys back to V.G. Defendant then said he was going to leave again, and took the keys away from V.G. V.G. sat on the car's trunk and tried to stop him. Defendant drove away while she was still on top of the car. Defendant stopped the car, and punched and kicked V.G. in "the stomach and everywhere." Defendant accused V.G. of "causing too much tension for the neighbors." V.G. was crying and told defendant to stop hitting her. Earlier that day, defendant also punched holes in the walls. V.G. did not report this incident to the police.
Dora Rivera, V.G.'s neighbor, testified she heard defendant and V.G. argue, and once saw V.G. on top of a car hood. Rivera had seen V.G.'s mother driving that car. On this day, however, defendant was driving the car while V.G. was still on top of the hood. Rivera saw V.G. later on, and there were injuries on her face.
V.G. testified she stayed with defendant after these incidents because she still loved him.
DEFENDANT'S TRIAL TESTIMONY
Defendant stipulated that he had a prior conviction in 2010 in San Joaquin County for inflicting injury on V.G. that resulted in a traumatic condition (§ 273.5). He also had a prior conviction for battery against V.G. (§ 243, subd. (e)(1)), in San Joaquin County in 2013.
Defendant did not deny committing the prior assaults and inflicting the injuries described by V.G. Defendant testified he hit her during the 2007 incident because V.G. threw something at him. He hit V.G. and caused the black eye during the 2009 incident. He slapped and punched V.G. during the 2013 incident and inflicted bruises on her leg. Defendant testified that V.G. always returned to him after these prior incidents.
Defendant denied V.G.'s account about the incident leading to the currently charged offenses. Defendant admitted he inflicted the injuries that Officer Muto observed on July 5, 2014. However, defendant testified these injuries occurred a few days earlier and were unrelated to the charged offenses. Defendant got mad at V.G. and hit her inflicting the injuries around her eye.
Defendant testified that on July 3, 2014, he walked to V.G.'s apartment. Defendant believed a protective order was in place at that time, to keep him away from V.G., but it "never mattered to us." Defendant was going to pick up his belongings because he was leaving V.G. and going to live with another woman. The apartment's door was open, and he walked inside. V.G. told defendant to get his things and leave. Defendant asked to use the minivan. V.G. said no. Defendant asked if he could use the cell phone they had shared. V.G. again said no.
Defendant testified he realized they were going to argue so he sent the three older children into the bathroom so they would not hear; the two younger children were already asleep. After the children left, defendant and V.G. argued about the minivan and the cell phone. Defendant took the cell phone out of the charger and said he was going to take the money.
Defendant testified they argued for 20 minutes, he never hit her, and he did not tie up V.G. V.G. eventually calmed down. Defendant said he would leave in the morning and V.G. said that was fine.
Defendant said he watched a movie with V.G. and they fell asleep. In the morning, defendant told the children that he was going to take them swimming. Defendant told V.G. that he was going to take the minivan to move his things and would return it later.
Defendant left in the minivan with the two children. Defendant claimed V.G. never objected when he took the children. Defendant drove to his girlfriend's house and picked up her children, then bought pizza. They went to another friend's house and went swimming for the rest of the day. While they were at that house, defendant printed out a page from Craigslist because he was trying to find furniture for his new apartment. The friend who lived at the house with the pool told defendant he could take a television that did not work very well, so defendant put it in the minivan.
Defendant, his girlfriend, and their children left the house with the pool, and drove to the various houses that had listed furniture to sell on Craigslist. Defendant denied that he broke into any homes or stole any property. They did not buy anything and returned to the house with the pool. After that, they watched fireworks in the street and then went back to the girlfriend's home.
Defendant testified he drove the minivan back to V.G.'s apartment and returned with the two children. There were three men there, and defendant got mad at them because they were involved in his affairs. The children ran into the house, and one of the neighbors sprayed mace at him. Defendant ran away because he could not see. Defendant admitted the police officer arrived just as he started to run away, and that he kept running and jumped over fences because he was afraid of the neighbors.
Defendant testified he never kidnapped his children or threatened to kill V.G. or the children. He did not tie up or hit V.G. on the day that he took the children in the minivan. V.G. and the children had lied in their contrary testimony and statements. Charges , convictions, and sentence
In a third amended information, defendant was charged with the following offenses:
Count 1: First degree burglary of V.G.'s residence (§ 459);
Count 2: Corporal injury to V.G., the mother of defendant's children, with two prior domestic violence convictions (§ 273.5, subd. (a));
Count 3: Kidnapping of V.G., (§ 207, subd. (a));
Count 4: Carjacking of V.G.'s vehicle (§ 215, subd. (a));
Counts 5 and 6: Child abuse of, respectively, A.G. and J.G. (§ 273a, subd. (a));
Counts 7 and 8: Criminal threats to, respectively, A.G. and J.G. (§ 422);
Count 9: First degree residential robbery of V.G.'s personal property (§ 211); and
Count 10: Misdemeanor resisting or obstructing a peace officer (§ 148, subd. (a)(1)).
It was further alleged that defendant had one prior serious felony conviction, one prior strike conviction, and one prior prison term enhancement.
During trial, the court granted defendant's motion to dismiss count 3, kidnapping, and granted the prosecutor's motion to amend the charge to the lesser offense of felony false imprisonment.
On April 13, 2015, the jury found defendant not guilty of count 1, first degree burglary; count 4, carjacking; and count 9, first degree residential robbery.
When the verdicts were read, the court stated that the foreperson had signed the "not guilty" verdict for count 1, burglary, but also marked the "special allegation" true, that another person other than an accomplice was present. The foreperson confirmed that count 1 was "definitely" not guilty.
Defendant was found guilty of count 2, corporal injury to V.G.; count 3, false imprisonment by violence of V.G. (§ 236); counts 7 and 8, criminal threats against A.G. and J.G.; and count 10, misdemeanor resisting or obstructing an officer.
As to counts 5 and 6, defendant was found not guilty of the charged offenses of felony child abuse of A.G. and J.G., but guilty of the lesser included offenses of misdemeanor child abuse of each child (§ 273a, subd. (b)).
The court found the prior conviction allegations true.
The court denied defendant's request to dismiss his prior strike conviction and sentenced him to an aggregate term of 16 years four months.
DISCUSSION
I. CALCRIM No. 330
As set forth above, V.G.'s two children, J.G. and A.G., testified at trial. The court instructed the jury with CALCRIM No. 330, on the testimony of children who were 10 years old or younger:
"You have heard testimony from a child or children under the age of 10. As with any other witness, you must decide whether the child gave truthful and accurate testimony. In evaluating the child's testimony, you should consider all of the facts surrounding that testimony, including the child's age and level of cognitive development. When you evaluate the child's cognitive development, consider the child's ability to perceive, understand, remember, and communicate. [¶] While a child and an adult witness may behave differently, that difference does not mean that one is any more or less believable than the other. You should not discount or distrust the testimony of a witness just because he or she is a child.
Defendant did not object to this instruction.
On appeal, defendant contends CALCRIM No. 330 is unconstitutional and violated his rights to due process and a jury trial because it unfairly suggested the children's testimony should be treated differently than an adult witness; bolstered the children's credibility; and impaired his ability to impeach the children's testimony.
Defendant concedes that defense counsel did not object to the instruction, but argues the issue may still be addressed because it affects his substantial rights. (§ 1259; People v. Taylor (2010) 48 Cal.4th 574, 630, fn. 13; but cf. People v. Fernandez (2013) 216 Cal.App.4th 540, 559 [failure to object forfeits appellate challenge to CALCRIM No. 330].)
Even if defendant had preserved the objection, the identical challenges to CALCRIM No. 330, and its predecessor, CALJIC No. 2.20.1, have been repeatedly rejected. The instruction is derived from section 1127f, which adopts the modern view regarding the credibility of child witnesses, namely "that a child's testimony cannot be deemed insubstantial merely because of his or her youth." (People v. Jones (1990) 51 Cal.3d 294, 315-316.)
"CALCRIM No. 330 simply instructs the jury to take into account a child's ability to perceive, understand, remember and communicate when making a credibility determination. It does not instruct the jury to subject a child's testimony to a less rigorous credibility determination, nor does it excessively inflate a child witness's credibility. We reject appellant's constitutional challenge to CALCRIM No. 330." (People v. Fernandez, supra, 216 Cal.App.4th at p. 560, fn. omitted; see also People v. Harlan (1990) 222 Cal.App.3d 439, 455-457 (Harlan) [instruction does not usurp the role of the jury, require jury to draw any particular inferences, or violate the defendant's constitutional right to confront witnesses]; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1392-1394 (Gilbert) [the challenged instruction does not lessen prosecutor's burden of proof, instruct the jury to unduly inflate the testimony of a child witness, or deny defendant's rights to due process and equal protection]; People v. Jones (1992) 10 Cal.App.4th 1566, 1573-1574 (Jones) [the instruction does not remove the issue of credibility from the jury but "presupposes that the jury must make a determination of credibility, but only after considering all the factors related to a child's testimony, including his [or her] demeanor, i.e., how he or she testifies on the stand"]; People v. McCoy (2005) 133 Cal.App.4th 974, 978-980 [CALJIC No. 2.20.1 did not improperly bolster a child's testimony or violate defendant's constitutional rights].)
Defendant acknowledges that the instruction has been repeatedly upheld, but argues these cases were wrongly decided and disapproved in People v. Dennis (1998) 17 Cal.4th 468 (Dennis), because the California Supreme Court held that defense challenges to the instruction were "credible" and not "baseless."
Defendant's reliance on Dennis is misplaced. In that case, the defendant argued on appeal that his defense attorney was ineffective for failing to request the instruction provided for in section 1127f, which was CALJIC No. 2.20.1 at that time. In response to that claim, the Attorney General argued that defense counsel could have made a reasonable tactical decision not to request the instruction. (Dennis, supra, 17 Cal.4th at p. 527.)
Dennis held that defense counsel reasonably could have decided to "forgo the instruction for tactical reasons." (Dennis, supra, 17 Cal.4th at p. 527.) Dennis noted that in Jones, Gilbert, and Harlan, defense attorneys had attacked the instruction and claimed it violated the jury's function of assessing witness credibility, but these arguments had been rejected. Dennis did not find the prior cases had been wrongly decided or the instruction was unconstitutional, but concluded that prior attacks upon the instruction had not been "so baseless and unreasonable as to render defense counsel's performance deficient for not requesting the instruction in this case," particularly since the jury received another instruction to evaluate witness credibility. (Dennis, supra, at p. 527.)
We agree with these cases and similarly conclude that CALCRIM No. 330 did not violate defendant's constitutional rights.
II. Section 654
Defendant next contends that the court improperly sentenced him for both count 2, corporal injury to V.G., and count 3, false imprisonment of V.G., because the two offenses arose from an indivisible transaction, and the term for count 3 should have been stayed pursuant to section 654.
A. Background
The court sentenced defendant an aggregate second strike term of 16 years four months as follows: count 2, corporal injury to V.G., the upper term of five years, doubled to 10 years; count 7, criminal threats to A.G., a consecutive term of one year four months (one-third the midterm, doubled), plus five years for the prior serious felony enhancement, and it "stayed" the prior prison term enhancement; count 3, false imprisonment of V.G., the concurrent midterm of two years, doubled to four years; and count 8, criminal threats to J.G., a concurrent term of two years, doubled to four years.
In issue 3, post, we will find the matter must be remanded because the court improperly "stayed" the prior prison term enhancement.
The court did not impose any sentence for counts 5, 6, and 10, and dismissed two trailing misdemeanor cases. The court also ordered defendant not to have any contact with the "victims" in the case.
In issue 4, post, we will find the matter must be remanded for the court to reconsider the protective order that it issued in this case.
B. Analysis
"Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]" (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)
In addressing defendant's argument, the People assert that "[c]onsecutive sentencing" was appropriate for counts 2 and 3, but the court imposed a concurrent term for count 3. Nevertheless, even a concurrent term must be stayed if subject to the provisions of section 654.
"It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citation.] [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).)
"If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (Harrison, supra, 48 Cal.3d at p. 335.)
"We review under the substantial-evidence standard the court's factual finding, implicit or explicit, of whether there was a single criminal act or a course of conduct with a single criminal objective. [Citations.]" (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.)
There is substantial evidence to support the court's implicit finding that section 654 did not apply to the sentences imposed for counts 2 and 3. According to the trial evidence, defendant appeared at the apartment and told V.G. that he just wanted to collect his belongings. V.G. testified she gathered defendant's things and asked him to leave. Defendant became angry, he took the cell phone from her, and hit V.G. in the face, arms, ribs, and legs. After delivering these blows, defendant dragged V.G. into the bedroom by her hair and tied her up. Defendant eventually untied her, took the keys to the minivan, and left with the two children.
Defendant's intent and objective of inflicting corporal injury upon V.G. was separate from, and not incidental to, his intent and objective to falsely imprison her. The principal offense in count 2 of inflicting corporal injury on V.G. was complete when he hit her in the face, arms, ribs, and legs, shortly after he entered the apartment. It was only after defendant delivered these blows that he dragged her by the hair into another room, tied her up, and told her to be quiet because the neighbors might hear her cries. The principal offense did not facilitate, and it was not facilitated by, the subsequently committed offense in count 3 of false imprisonment. (See, e.g., People v. Ratcliffe (1981) 124 Cal.App.3d 808, 816-821.)
III. Prior Prison Term Enhancement
At the sentencing hearing, as noted above, the court "stayed" the prior prison term enhancement imposed as to count 7, criminal threats to A.G.
On appeal, defendant contends and the People concede, that if a prior prison term enhancement is found true, the court cannot "stay" the enhancement and imposition of the term is mandatory unless the enhancement is "stricken." (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Haykel (2002) 96 Cal.App.4th 146, 151.)
The parties agree the matter must be remanded for the trial court to exercise its discretion under section 667.5, subdivision (b), to either impose the one-year term or strike the enhancement.
IV. Protective Order
Finally, defendant contends the court improperly imposed a protective order against him as to all the "victims" in this case, without stating the statutory basis or length of the order. Defendant further argues the court lacked statutory authority to impose any type of protective order against A.G. and J.G.
Defendant concedes he did not object to the court's protective order, but asserts he may raise the issue in this appeal because the court failed to state the statutory basis for the order and may have lacked jurisdiction to impose the order in favor of the two children. (See, e.g., People v. Scott (1994) 9 Cal.4th 331, 354.)
As we will explain, it appears the court had statutory authority to impose the protective orders for V.G. and the children, but the matter must be remanded for the court to clarify the basis for the orders and make other appropriate findings.
A. Background
As noted above, defendant was convicted of corporal injury on V.G., the mother of his children (§ 273.5, subd. (a)); false imprisonment of V.G. (§ 236); felony criminal threats against A.G. and J.G. (§ 422); and misdemeanor child abuse of A.G and J.G. (§ 273a, subd. (b)).
The probation report identified V.G., A.G., and J.G. as the victims in this case, and A.G. and J.G. were the victims of defendant's criminal threats. They were particularly vulnerable because of their ages, and defendant took advantage of his position of trust and confidence as their father.
The probation report recommended the court impose an order that defendant "have no further contact with the victims, in person, in writing, by telephone or by Internet," but did not state the statutory basis for such an order.
The court conducted the sentencing hearing on May 29, 2015. After it imposed the state prison term, the court ordered defendant to "not have any further contact with the victims. That means in person, in writing, by telephone or by Internet."
The court checked a box on the minute order that stated: "The defendant have no further contact with the victims, in person, in writing, by telephone or by Internet." The court did not identify the "victims" or the statutory authority for this order.
On June 10, 2015, the court issued a corrected minute order as to the imposition of the enhancements in this case; it did not address the protective order.
On June 12, 2015, the abstract of judgment was filed, and it did not address the protective order.
B. Section 136.2
The parties agree that the court failed to state the statutory basis for the protective orders, and the court likely relied upon section 136.2. The parties also agree that V.G. is a "victim" within the meaning of section 136.2 and a proper subject for a protective order, and disagree as to whether a protective order could have been imposed for his children, A.G. and J.G.
We begin with section 136.2, which "primarily authorizes trial courts to issue prejudgment restraining orders to protect victims and witnesses during the pendency of the criminal action in which they are issued. [Citations.]" (People v. Therman (2015) 236 Cal.App.4th 1276, 1278-1279 (Therman), italics in original; see, e.g., § 136.2, subds. (a), (b), (e), (h).) "Thus, once the defendant is found guilty and sentenced, the court's authority to issue a protective order under section 136.2, subdivision (a) generally ceases. [Citations.]" (People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465 (Beckemeyer).)
"However, in 2011, the Legislature responded to this restrictive judicial construction by creating an exception to the preconviction limitation of a section 136.2 restraining order for domestic violence cases. [Citation.] Effective January 1, 2012, the Legislature added section 136.2, subdivision (i) to the statutory scheme so that a 10-year postconviction protective order would be permissible when a defendant was convicted of a domestic violence offense." (Beckemeyer, supra, 238 Cal.App.4th at p. 465, fn. omitted.)
At the time of the 2015 sentencing hearing in this case, section 136.2, subdivision (i)(1) stated:
"In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section
6211 of the Family Code, a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with the victim. The order may be valid for up to 10 years, as determined by the court. This protective order may be issued by the court regardless of whether the defendant is sentenced to the state prison or a county jail, or whether imposition of sentence is suspended and the defendant is placed on probation. It is the intent of the Legislature in enacting this subdivision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family." (Italics added.)
At the time of the sentencing hearing, section 136.2, subdivision (i)(2) provided for electronic monitoring of a defendant subject to such a protective order.
This case does not involve a violation of sections 261, 261.5, or 262, or any crime that requires defendant to register pursuant to section 290, subdivision (c). Thus, the court's statutory authority to impose postconviction protective orders in favor of V.G., A.G., and J.G. is dependent upon the definitions of domestic violence contained within section 136.2, subdivision (i)(1).
Section 136.2, subdivision (i)(1) "authorizes a postconviction restraining order (1) when the crime qualifies as a 'domestic violence' crime, and (2) the protected person qualifies as a 'victim.' " (Beckemeyer, supra, 238 Cal.App.4th at p. 466.)
Effective January 1, 2018, section 136.2, subdivision (i)(2) was amended to add another category for a postconviction restraining order:
"In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, a violation of Section 261, 261.5, or 262, a violation of Section 186.22, or a crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a percipient witness to the crime if it can be established by clear and convincing evidence that the witness has been harassed, as defined in paragraph (3) of subdivision (b) of Section 527 .6 of the Code of Civil Procedure, by the defendant." (Italics added.)
Section 136.2, subdivision (i)(1) is based on two alternative statutory definitions of "domestic violence," each of which vests the court with jurisdiction to impose an order "restraining the defendant from any contact with the victim." (§ 136.2, subd. (i)(1), italics added.) A "victim" is defined as "any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other state or of the United States is being or has been perpetrated or attempted to be perpetrated." (§ 136, subd. (3), italics added.)
The first statutory definition of domestic violence in section 136.2, subdivision (i)(1) refers to whether the defendant has been convicted "of a crime involving domestic violence as defined in Section 13700 ...." (§ 136.2, subd. (i)(1), italics added ; Therman, supra, 236 Cal.App.4th at p. 1279.)
Section 13700, subdivision (b) states:
" 'Domestic violence' means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, 'cohabitant' means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as spouses, (5) the continuity of the relationship, and (6) the length of the relationship." (Italics added.)
Section 13700, subdivision (a) defines "abuse," as used in subdivision (b), as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another."
Section 13700, subdivision (d) defines a "victim" as "a person who is a victim of domestic violence."
1. Analysis
The court had statutory authority in this case to impose a section 136.2, subdivision (i)(1) protective order in favor of V.G. based on the definitions contained in section 13700.
V.G. was clearly a "cohabitant" and within the class of persons protected by section 13700, subdivision (b). Defendant and V.G. had lived together, on and off, for 10 years, they were the parents of five children, and defendant had left the apartment a few days before the incident.
V.G. was also the victim of domestic violence and abuse, as defined in section 13700, subdivision (a), section 136.2, subdivision (i)(1), and section 130, subdivision (3). Defendant was convicted of count 2, corporal injury to V.G., the mother of his children, and count 3, false imprisonment of V.G. Defendant hit V.G. in the face, arms, ribs, and legs, dragged her by the hair into another room, and tied her up for several hours. She suffered bruises on her eye, face, arm and legs. Defendant's conduct clearly qualifies as "intentionally or recklessly causing or attempting to cause bodily injury ...." (§ 13700, subd. (a); Therman, supra, 236 Cal.App.4th at p. 1279.)
As for the children, however, section 13700, subdivision (b) limits the definition of domestic violence to abuse committed against an adult or a minor "who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." While the definition includes "a minor," it further limits the definition of a "cohabitant" to mean "two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as spouses, (5) the continuity of the relationship, and (6) the length of the relationship." (§ 13700, subd. (b).)
Section 13700's definitions of domestic violence does not appear to apply to the two minor children, ages seven and eight, who were living with their mother. (See, e.g., People v. Dallas (2008) 165 Cal.App.4th 940, 953.)
D. Section 273.5
As a separate matter, the sentencing court had an alternate basis to impose a protective order for V.G., based on defendant's conviction in count 2 for infliction of corporal injury upon V.G. in violation of section 273.5, subdivision (a).
Section 273.5, subdivision (j) states:
"Upon conviction under subdivision (a), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. This protective order may be issued by the court whether the defendant is sentenced to state prison or county jail, or if imposition of sentence is suspended and the defendant is placed on probation."
While this statute would have authorized a protective order for V.G., defendant was not convicted of violating section 273.5 as to either A.G. or J.G., and it would not have supported a protective order for the children. (See, e.g., People v. Delarosarauda (2014) 227 Cal.App.4th 205, 212-213.)
While the children do not qualify as "victims" within the meaning of section 13700 or section 237.5, they appear to fall within section 136.2, subdivision (i)(1)'s alternative definition of domestic violence, i.e., that defendant was convicted of a crime "involving domestic violence as defined ... in Section 6211 of the Family Code ...." (§ 136.2, subd. (i)(1), italics added.)
Family Code section 6211 defines domestic violence as follows:
" 'Domestic violence' is abuse perpetrated against any of the following persons:
"(a) A spouse or former spouse.
"(b) A cohabitant or former cohabitant, as defined in Section 6209.
"(c) A person with whom the respondent is having or has had a dating or engagement relationship.
"(d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12).
"(e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.
"(f) Any other person related by consanguinity or affinity within the second degree." (Italics added.)
In contrast to section 13700, subdivision (b), Family Code section 6211 defines domestic violence more broadly and specifically includes abuse perpetrated against "the child of a party." (People v. Ogle (2010) 185 Cal.App.4th 1138, 1144; People v. Dallas, supra, 165 Cal.App.4th at p. 953; Beckemeyer, supra, 238 Cal.App.4th at p. 466.)
Family Code section 6209 also broadly defines a "[c]ohabitant" as "a person who regularly resides in the household. 'Former cohabitant' means a person who formerly regularly resided in the household." In contrast to section 13700, Family Code section 6209 does not limit the definition of a "cohabitant" to adults involved in intimate relationships.
At the time of the 2015 sentencing hearing, Family Code section 6203 defined "abuse" as follows:
"(a) For purposes of this act, 'abuse' means any of the following:
"(1) Intentionally or recklessly to cause or attempt to cause bodily injury.
"(2) Sexual assault.
"(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
(4) To engage in any behavior that has been or could be enjoined pursuant to [Family Code] Section 6320.
"(b) Abuse is not limited to the actual infliction of physical injury or assault." (Italics added.)
Family Code section 6320 authorizes the court to enjoin a party from " 'stalking, threatening,... harassing, [and] telephoning' the other party." (People v. Ogle, supra, 185 Cal.App.4th at p. 1144.)
1. Analysis
Defendant was convicted of two counts of felony criminal threats, and two counts of misdemeanor child abuse, against respectively, A.G. and J.G. Given defendant's convictions, both children were thus "victims" within the meaning of section 136.2, subdivision (i)(1) and section 130, subdivision (3). Both children were victims of domestic violence within the meaning of the Family Code since they were children "of a party" (Fam. Code, § 6211) and cohabitants, defined as persons "who regularly reside[] in the household." (Fam. Code, § 6209; People v. Dallas, supra, 165 Cal.App.4th at pp. 953-954; Beckemeyer, supra, 238 Cal.App.4th at pp. 466-467; cf. People v. Delarosaruda, supra, 227 Cal.App.4th at p. 211 [postconviction protective order invalid since the defendant was not convicted of, and there was no evidence that he perpetrated, any harm to minor children].)
Both children were also "victims" of "domestic violence" and "abuse" within the meaning of the Family Code. Based on the children's testimony and their pretrial statements, the trial evidence showed that defendant threatened the children with harm if they talked about the incident. J.G. said defendant told her to lie to their mother about what happened that day, that "[i]f you tell her the truth, I'll kill you guys," and J.G. said she was really scared. According to A.G., defendant told the children not to tell their mother about what happened that day or " 'I'm going to kill your mom,' " and A.G. was scared.
Defendant's convictions for making criminal threats to each child, in violation of section 422, required proof "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat - which may be 'made verbally, in writing, or by means of an electronic communication device - was 'on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
It would appear that defendant's criminal threats to the children would constitute domestic violence and abuse within the meaning of Family Code section 6203, which includes placing "a person in reasonable apprehension of imminent serious bodily injury to that person or to another." (Fam. Code, § 6203, subd. (a)(3).) Such abuse is not limited to "the actual infliction of physical injury or assault." (Fam. Code, § 6203, subd. (b).) The children stated that they knew about defendant's prior acts of hurting their mother. There is no evidence defendant physically assaulted them, but they had just seen defendant violently attack their mother and then tie her up for most of the night. Defendant forced A.G. to help him bind his mother, and the children stated that they were frightened when defendant threatened to harm their mother or themselves if they talked about what happened. (See, e.g., People v. Ogle, supra, 185 Cal.App.4th at pp. 1140-1144 [stalking is an act of domestic violence within the meaning of Fam. Code § 6211].)
F. Conclusion
While it appears the court has the authority to impose protective orders in this case pursuant to either section 273.5 and/or section 136.2, subdivision (i)(1), the court failed to clarify the statutory basis for the orders, and the length of the orders, as to each victim.
Defendant asserts that the court cannot impose a protective order in favor of his own children. Given that the children are likely victims of domestic violence within the meaning of section 136.2, subdivision (i)(1) and Family Code section 6211, defendant may raise this issue on remand.
DISPOSITION
The matter is remanded for the court to consider whether to impose or strike the section 667.5, subdivision (b) prior prison term enhancement, and to address and clarify the protective orders imposed as to each victim.
In all other respects, the judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
MEEHAN, J.