Opinion
F074883
07-09-2018
THE PEOPLE, Plaintiff and Respondent, v. AKASH SHARMA, Defendant and Appellant.
Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15901649)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge. Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Peña, J.
-ooOoo-
A jury convicted appellant Akash Sharma of domestic violence (Pen. Code, § 273.5; count 1), false imprisonment by violence (§ 236; count 2), dissuading a victim by force or threat (§ 136.1, subd. (c)(1); count 3), and stalking while subject to a restraining order (§ 646.9, subd. (b); count 4).
All further statutory references are to the Penal Code.
On December 16, 2016, the court sentenced Sharma to an aggregate prison term of eight years as follows: the upper term of four years on count 1, a concurrent, upper term of three years on count 2, a fully consecutive middle term of three years on count 3, and a consecutive one-year term on count 4 (one-third the middle term of three years).
On appeal, Sharma contends his sentence violates section 654's proscription against multiple punishment. We affirm.
FACTS
The facts relating to Sharma's conviction for disobeying a restraining order are omitted because Sharma does not raise any issues with respect to that conviction.
Sharma began dating I.C. in 2012. In November 2014, she became pregnant with his child.
On January 3, 2015, Sharma became upset because I.C. visited her family and he began texting her. Nevertheless, she invited Sharma to her apartment because she needed money for rent and she wanted him to repay her $600 she had lent him. Sharma went to I.C.'s apartment and gave her the $600. Sharma was mad and after he argued with I.C. over having to pay her the money, I.C. told him she wanted to break up. Sharma then followed her into her bedroom, pushed her down on her back on the bed, and got on top of her as he held her down by the arms.
I.C. felt "breathless" and began hitting Sharma on the back of his neck because she was afraid he was going to harm her fetus. Sharma then got off her and stepped away, which allowed I.C. to get up and run out of the room to the front door. Sharma, however, caught up to her, put his arms around her stomach and threw her, stomach first, on a couch. I.C. hit her stomach on an arm of the couch and dropped to the floor because she felt an intense pain in her stomach. Sharma was busy looking for something as I.C. got up from the floor, went into the bathroom, and told him she was going to call the police. She was making a call when Sharma approached and struggled briefly with her before taking her cell phone away. I.C. stood by the bathroom door as Sharma "went out of control" and knocked down her Christmas tree. She then began following Sharma, yelling at him to return her phone. Sharma became very upset and he turned around and punched I.C. on the forehead, causing her to "bounce back." I.C. ran to the front door but Sharma chased her, grabbed her by the neck, and pulled her back. He then emptied her purse on the floor, took the $600 he gave her earlier, and left. I.C. tried to use her landline to call police, but it was not working.
The blow to I.C.'s head left a bump on her forehead. I.C. also received some scratches from Sharma grabbing her by the neck.
During closing arguments, the prosecutor argued that Sharma falsely imprisoned I.C. when he restrained her on the bed and when he grabbed her by the neck. He also argued that Sharma inflicted corporal injury on I.C. when he punched her on the forehead, slammed her on the on the couch, stomach first, and when he grabbed her by the neck.
DISCUSSION
Sharma contends the false imprisonment and domestic violence were part of the same indivisible course of criminal conduct, that the false imprisonment was the means Sharma used to injure I.C., and that both offenses were based on the same act. Thus, according to Sharma, the court violated section 654's prohibition against multiple punishment when it imposed a concurrent term on his false imprisonment conviction. We disagree.
Section 654 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."
"Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citation.] 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." (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)
" 'It is [the] defendant's intent and objective, not temporal proximity of his offenses, which determine whether the transaction is indivisible.' [Citation.] ' "The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced." ' " (People v. Capistrano (2014) 59 Cal.4th 830, 886; accord, People v. Deegan (2016) 247 Cal.App.4th 532, 541-542, 545 (Deegan).)
"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." (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603; accord, Deegan, supra, 247 Cal.App.4th at p. 545 & fn. 4.) "The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal." (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) Even where a defendant has similar but consecutive objectives, multiple punishments are permitted. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.)
By imposing a concurrent three-year term on Sharma's false imprisonment conviction, the court implicitly found Sharma had multiple, independent objectives in committing that offense and the domestic violence offense. Substantial evidence supports the court's determination.
"False imprisonment occurs 'when "the victim is 'compelled to remain where he does not wish to remain, or to go where he does not wish to go.' " ' " (People v. Williams (2017) 7 Cal.App.5th 644, 672.) The false imprisonment charge was supported by Sharma's conduct in restraining I.C. on the bed and his conduct in grabbing her by the neck. The jury, however, was not required to make a factual finding regarding which conduct it relied on to find Sharma guilty of false imprisonment.
" 'Ordinarily, in determining whether ... section 654 applies, the trial court is entitled to make any necessary factual findings not already made by the jury.' ([Citations], see also People v. Osband (1996) 13 Cal.4th 622, 730, ... [affirming decision not to stay sentence for rape and robbery under [section] 654 even though it was unclear whether murder conviction was based on felony murder or premeditation theory, agreeing with People's argument that trial court 'implicitly found that the crimes ... involved more than one objective'].) Contrary to [the defendant's] argument that the jury must make the relevant findings, the courts have held that 'in the absence of some circumstance "foreclosing" its sentencing discretion ..., a trial court may base its decision under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts.' " (Deegan, supra, 247 Cal.App.4th at p. 545, italics added.)
Here, the jury could have found Sharma falsely imprisoned I.C. when he restrained her on the bed or when he grabbed her by the neck. Further, since the jury did not make any factual finding regarding what conduct by Sharma it relied on to convict him of this offense, the court could find that Sharma's false imprisonment conviction was based on Sharma's conduct in restraining I.C. on the bed and his domestic violence conviction on his conduct in grabbing her by the neck. Accordingly, we reject Sharma's contention that for purposes of section 654, his false imprisonment and domestic violence convictions were both based on his conduct in grabbing I.C. by the neck.
Moreover, although the false imprisonment and domestic violence offenses occurred during a continuous course of conduct, the court could reasonably find Sharma had different objectives when he committed each offense. Sharma pushed I.C. on the bed and restrained her after she told him she wanted to end their relationship. The court could reasonably find from these circumstances that his intent in restraining her was to punish her for wanting to end their relationship. Further, Sharma grabbed I.C. by the neck as she attempted to run out the front door. He then emptied her purse and took the $600 before leaving. The court could reasonably find from these circumstances that his intent in grabbing I.C. by the neck was to allow him time to get the $600 back from her and to escape before she summoned help. Thus, we conclude that the court did not violate section 654 when it imposed a concurrent term on Sharma's false imprisonment conviction.
Sharma contends he was in the apartment for only one purpose, i.e., to attack I.C. because he was angry that she wanted to break up with him. This contention is not supported by the evidence, which indicates I.C. did not tell Sharma she wanted to end their relationship until after he was already at the apartment and, by then, Sharma was already angry and arguing with her over the $600 he gave her to repay her loan to him. --------
DISPOSITION
The judgment is affirmed.