Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC506568
RUSHING, P.J.
Defendant Sergio Sanchez appeals a judgment following a contested probation violation hearing during which he was sentenced to five years in state prison. On appeal, defendant asserts the trial court erred pursuant to Penal Code section 654 when it punished assault with attempt to commit rape (Pen. Code, § 220) separate from inflicting corporal injury on a former cohabitant (§ 273.5), because both crimes were part of an indivisible transaction.
All further unspecified statutory references are to the Penal Code.
Statement of the Facts and Case
The facts stated are from the probation report.
Defendant and the victim, Jane Doe, had previously been romantically involved and had since ended their relationship. On June 27, 2005, or September 27, 2005, defendant met Doe outside of her evening class. Defendant asked Doe for a second chance at their relationship, but she refused. Doe eventually agreed to drive defendant to a friend’s house.
There is a discrepancy in the record as to the date of the crime. The information alleges it occurred on June 27, 2005, while the probation report indicated September 27, 2005.
On the way to the friend’s house, defendant told Doe that if they made love one last time he would leave her alone. She refused. Defendant became angry, took the steering wheel and caused the car to veer into a pole. When they both got out of the car, defendant grabbed Doe and drug her about 40 feet towards some bushes. Defendant again asked to make love, and again Doe refused. Defendant pulled up Doe’s dress and pulled down her panties. He then began to unbutton his pants and covered her mouth when two cars passed. Shortly thereafter, police and emergency medical personnel arrived. Defendant was arrested and Doe suffered bruising to the front of her neck and upper arms, had scratches on her knees and complained of pain to her back and knees.
In May 2006, an information was filed charging defendant with assault with intent to commit rape (§ 220 - count 1); false imprisonment (§ 236 - count 2); and attempted murder (§ 664/187 - count 3).
On July 20, 2006, the information was amended to add a charge of inflicting corporal injury on a former cohabitant (§ 273.5 - count 4). Defendant pleaded no contest to assault with intent to commit rape, and inflicting corporal injury on a cohabitant in exchange for a dismissal of the remaining counts and a two year top. On September 14, 2006, the court suspended imposition of sentence, placed defendant on five years of probation, and dismissed the remaining counts.
Defendant’s probation conditions included an order to report to the probation department within three days of his release from custody, complete a domestic violence program, pay fines and fees, register as a sex offender, and pay $700 restitution to the victim. Defendant failed to comply with any of these conditions. Eventually a warrant was issued for his arrest, and he turned himself in.
At the contested probation violation hearing in October 2007, defendant testified that did not remember being ordered to do anything except to stay away from the victim and pay $700 in restitution. Defendant stated that he did not report to the probation department when he was released, because he did not know what probation was. If given another chance, defendant said he would comply with all the conditions.
At the conclusion of the hearing, the court terminated probation and sentenced defendant to five years in state prison, consisting of the midterm of four years for assault with intent to commit rape, and a consecutive one year term for inflicting corporal injury on a former cohabitant. Defendant filed a timely notice of appeal.
Discussion
Defendant asserts on appeal the trial court violated section 654 by sentencing him to separate, consecutive sentences for assault with intent to commit rape, and inflicting corporal injury on a former cohabitant, because both crimes were part of an indivisible transaction.
Section 654, subdivision (a) states, in pertinent part, “[a]n 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.” The statute prohibits multiple punishment for an indivisible course of conduct with a common intent and objective, even though the conduct at issue violates more than one statute. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.)
The question is whether the conduct in this case constitutes an indivisible act. “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal).) In Neal, the defendant set fire to a home with two occupants, severely burning them. The defendant was charged with two counts of attempted murder and one count of arson, and subsequently imprisoned with consecutive sentences for both the murders and arson. The Neal court found that since the defendant’s intent was to murder the occupants of the house, it would be improper to punish the defendant separately for the arson, because that was the means he used to accomplish his intent. (Ibid.)
Here, defendant’s intent and objective in committing the crimes was clear: defendant wished to stop the car and “make love” to Jane Doe, a woman with whom he was formerly in a relationship. After the crash and while getting out of the car, defendant immediately began dragging Doe into the bushes, injuring her in the process. Defendant’s acts of dragging Doe out of the car and attempted to rape her were part of the same course of conduct, and, like Neal, were motivated by the same intent and objective. As such, defendant’s crimes were part of one, indivisible transaction.
We find the trial court erred in sentencing defendant separately for the crimes of attempt to commit rape and inflicting corporal injury on a cohabitant in this case.
Disposition
The judgment is modified and the sentence of one year in state prison on count 4, inflicting corporal injury on a cohabitant is stayed pursuant to section 654. As so modified, the judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.