Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F06908505. James Oppliger, Judge.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.
INTRODUCTION
Appellant, Robyn Sotello, was charged with attempted murder (Pen. Code, §§ 664 & 187, subd. (a), count one), assault with a deadly weapon (§ 245, subd. (a)(1) count two), false imprisonment (§ 236, count three), and first degree burglary (§§ 459 & 460, subd. (a), count four). Counts one and two alleged that appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)). Counts one, three, and four alleged appellant personally used a deadly weapon, a baseball bat (§ 12022, subd. (b)(1)). On December 12, 2007, a jury found appellant guilty of all four counts and found the other allegations to be true.
Unless otherwise designated, all statutory references are to the Penal Code.
On February 20, 2008, the trial court sentenced appellant to state prison for an indeterminate term of life with the possibility of parole on count one. The sentence was enhanced one year for use of a deadly weapon and by three years for infliction of great bodily injury. Based on mitigating factors, the court stayed sentence on the great bodily injury allegation. The court sentenced appellant to concurrent terms of one year four months on count three and a term of two years on count four. The gun use enhancements alleged as to those counts were ordered to be served concurrently to count one. The court imposed a sentence of two years on count two but stayed that sentence as well as the great bodily injury enhancement alleged on count two pursuant to section 654.
On appeal, appellant contends the court violated section 654 in sentencing her on counts three and four. Respondent concedes the error as to count four but not as to count three. Appellant also contends the court erred in staying, rather than striking, the great bodily injury enhancement. Respondent concedes this error but argues the matter should be remanded because it is unclear whether the court would have stricken the enhancement rather than staying it.
FACTS
In July 2006, Lou Sotelo (Sotelo) relocated to Fresno while his wife, appellant, remained in Sacramento. In January or February 2006, Sotelo began an affair with Marian Wells (Wells), with whom he had worked. Sotelo went to Wells’s house a few times a week. By the summer of 2006, Wells’s husband, David Wells, had moved out and Sotelo had a key to Wells’s house. Sotelo returned the key to Wells on October 13, 2006. Although Wells had a hidden extra key to the house, Sotelo did not know where Wells kept it.
In October 2006, David Wells was babysitting his daughter in Wells’s house when he listened to a voice message on the answering machine. David Wells invited appellant to the residence because he suspected Wells was having an affair. Appellant came over to the house and had a conversation with David Wells in which she told him about the affair and that she wanted to kill Wells. In late October 2006 around Halloween, Sotelo told appellant he wanted to file for a divorce and did not care for her the way he cared for Wells.
Sotelo went to dine with Wells at her house on November 1, 2006. He left about 11:00 p.m. and Wells went to bed. Wells awoke when she was slammed over the head with a very hard, heavy object. Wells was hit several more times on the head until she jumped to her feet. Wells’s head felt split open and she was gushing blood. Wells kept saying: “Oh, my God. Stop it. Stop it.”
Appellant asked Wells what was wrong and if her head hurt. Wells had suffered six or seven blows from a baseball. Wells began to struggle with appellant trying to get the bat out of appellant’s hands. Wells failed to get the bat because appellant overpowered her. Appellant hit Wells very hard on the back. Appellant was also holding a hammer. After yanking the bat away from Wells, appellant ordered her to lie on the bed. When Wells’s daughter walked into the room, appellant ordered her to go back to her bedroom.
Wells pled with appellant to leave and to stop hitting her. Appellant told Wells to shut up and that her accomplice would be there any minute. No one else ever arrived. Appellant hit Wells in the ear, which began to bleed. Appellant forced Wells to stuff socks into her mouth.
Appellant ordered Wells to go into a bathtub. Appellant hovered over Wells with the bat and the hammer. Appellant ordered Wells to take off her clothes. Wells took off a pajama shirt and dropped it outside the bathtub. Wells followed appellant’s order to get into the bathtub and to turn on the water.
Appellant told Wells to wash herself. Wells splashed herself a few times but was afraid appellant would kill her in the bathtub. Wells looked up at appellant and knew she had to fight to try to get out of there for her daughter. Wells was not going to let appellant kill her in her own bathtub. Wells did not recall getting hit while in the bathtub. Wells was in the bathroom for 15 or 20 minutes. Wells summoned all of her strength and crossed her arms over her chest.
When appellant asked what Wells was doing, Wells told her she could not breathe and that she had to leave and get her daughter. Wells yelled to her daughter to run out the front door to get help. Appellant yelled at Wells to shut up. Wells’s daughter was in shock and did not know what to do. Wells stepped out of the tub, began blocking blows, and tried to work her way to the hallway with her daughter at her side.
Appellant was hitting Wells with the bat. Wells struggled with appellant all the way down the hall. Wells’s daughter was in front of Wells. Appellant hit Wells in her mouth, chest, hand, and arms. Wells was hit repeatedly and after a while, went numb and did not feel it anymore. Wells felt like her head was going to explode and was bleeding all over the place.
Wells saw the front door to her house. Appellant grabbed Wells’s daughter, pushed her arm, and yelled at her to go back to her bedroom. Wells’s daughter told appellant to leave her mommy alone. Appellant grabbed Wells by the hair and hit her in the back of the head with the hammer. Wells suffered an open crescent shape wound on the back of her head. This blow occurred just inside the front door. In a split second, as appellant was holding Wells by her hair, Wells broke free, grabbed her daughter’s hand, and ran out the door and down the street.
Wells ran to a neighbor’s house, rang the doorbell 20 times, turned around when the neighbor did not answer right away, ran back into the street and collapsed. Wells was wearing only her underwear. The neighbor opened the door and asked what was wrong. Wells felt as though she would black out. She saw appellant getting into a car that was backed into her driveway. Appellant drove away very fast. Wells’s neighbor picked her up and brought her into his house. The neighbor had his wife cover Wells and he called 911.
Dr. Geoffrey Stroh is a faculty member and emergency room doctor at Regional Medical Center. Stroh and a resident physician, Dr. Sarah Dolan, treated Wells when she was brought to the hospital. Dr. Stroh saw Wells at 2:40 a.m. Wells had two lacerations to her forehead and a contusion to her arm that appeared to be a fracture. There was a contusion on Wells’s jaw. The cuts on Wells’s face were two and four centimeters long and just above the left eye.
Stroh ordered a CT scan of Wells’s head and face to see if there was any internal damage. One cut required 18 stitches. The other required seven stitches. Some of the stitches were deep and others were just to the outer layer of skin. The injury to the arm turned out not to be a fracture. The injuries to Wells’s head were potentially fatal. Dr. Stroh could recall two patients that were killed by blows to the head by a baseball bat.
At 1:20 a.m. on November 2, 2006, appellant arrived at Sotelo’s apartment. Sotelo had not invited appellant and was not expecting her to be there. Appellant looked disheveled, was covered in blood, and was out of breath. At first Sotelo thought appellant may have attempted suicide. Sotelo then formed the opinion appellant attacked Wells. When Sotelo asked appellant if the blood was from Wells, appellant gave Sotelo an angry look.
Sotelo told his stepson to call the police. Appellant subsequently told Sotelo that the blood he saw belonged to Wells. Appellant told Sotelo that she used a copy of his key to Wells’s house. The baseball bat, hammer, and a pair of latex gloves, all with blood on them, were found in the car appellant drove. Appellant waived her constitutional rights after her arrest and admitted hitting Wells with a baseball bat. The tape recording of her interrogation was played for the jury.
SECTION 654 STAY
Appellant contends the trial court erred in sentencing her to concurrent sentences for false imprisonment (count three) and burglary (count four). Respondent concedes the burglary conviction is subject to a stay pursuant to section 654 but that appellant had a separate intent for false imprisonment. We agree with respondent and will order that appellant’s sentence for burglary be stayed.
Section 654 precludes multiple punishment for a single act or a course of conduct comprising an indivisible course of conduct. Whether a course of conduct is divisible depends on the intent and objective of the defendant. Whether section 654 applies is a question of fact for the trial court which is vested with broad latitude in making its determination. Its findings will not be reversed on appeal if there is any substantial evidence to support them. Appellate courts must view the evidence in the light most favorable to the trial court’s findings and presume the existence of every fact the trier could reasonably deduce from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; also see People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.)
The parties agree, and we concur, that appellant’s intent in burglarizing Wells’s house was to commit the acts of violence for which she was convicted. Appellant was sentenced for attempted murder but could not also be sentenced for burglary. We will therefore order that count four be stayed.
We will further order that the gun use enhancement imposed as a concurrent sentence on count four be stayed. Because the underlying count must be stayed pursuant to section 654, so must any enhancements alleged as to that count. (People v. Pearson (1986) 42 Cal.3d 351, 361-363; also see People v. Gonzales (2008) 43 Cal.4th 1118, 1128-1131.)
Respondent, however, challenges appellant’s assertion that section 654 also applies to her conviction for false imprisonment in count three. Appellant argues Wells was held in the bathroom for “a very brief period and continued to assault her before Wells escaped.” Appellant characterizes the false imprisonment as part of an indivisible course of conduct and further argues in her reply brief that Wells was not in the bathroom for 15 to 20 minutes but merely testified that 15 to 20 minutes passed from the time she was in the bathroom to the time she worked her way down the hall.
When asked if she remembered getting hit while in the bathtub, Wells replied that she did not recall getting hit. Appellant hovered over Wells and ordered her to draw a bath and to sit in the bathtub. Wells testified that she thought she was in the bathroom for 15 to 20 minutes. Wells did not describe getting hit again by appellant until she stepped out of the bathtub and began blocking blows, which continued as she went down the hall. We therefore do not accept appellant’s characterization of the facts. Making all reasonable deductions from the evidence, it is clear that appellant imprisoned Wells in the bathroom for 15 to 20 minutes without hitting her and that appellant resumed her attack as Wells ran past her to escape with her daughter.
Appellant continuously hit Wells during their initial bedroom encounter and again during Wells’s escape out of the bathroom, down the hall, and exiting the house. This attack did stop for at least 15 minutes while appellant imprisoned Wells in the bathroom. This was a distinct criminal intent and objective. Appellant relies on People v. Martinez (1980) 109 Cal.App.3d 851, 858 (Martinez) for the proposition that a defendant who assaulted his victim, dragged her under a bridge, attempted to rape her, and held her for a few moments to try to convince her not to complain to the police was entitled to the application of section 654 for false imprisonment.
The Martinez case is unquestionably an indivisible course of conduct. The detention there lasted a moment. Here, the detention lasted 15 to 20 minutes and interrupted appellant’s assaults on the victim. We find the facts of Martinez inapposite to those in the instant action and hold that the trial court did not err in giving appellant a concurrent sentence on count three.
STAY OF GREAT BODILY INJURY ENHANCEMENT
The parties agree that the court erred in staying appellant’s great bodily injury enhancement. Section 12022.7, subdivision (a) states that punishment pursuant to this statute “shall” be imposed. Under section 1385, however, the court has the discretion to strike the enhancement upon a statement of reasons in the furtherance of justice. (People v. Thomas (1997) 56 Cal.App.4th 396, 403-405; People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1121-1124; People v. Santana (1986) 182 Cal.App.3d 185, 190-192.)
Respondent argues that the case must be remanded because it is unclear from the record whether the court would have stricken the enhancement had it known it could not stay the enhancement. In denying probation, the court found one mitigating factor that it was clear from psychological reports that appellant was suffering from a mild or moderate mental illness. In staying the great bodily injury enhancement, the court noted it was doing so based on the mitigating factors it announced with regard to its ruling on probation.
The court initially noted that it could not impose either enhancement as a concurrent sentence but noted it had to impose the sentence on an enhancement or to strike it. The prosecutor requested that the court stay the sentence on the great bodily injury enhancement rather than to strike it.
It appears from the record the trial court did not intend to impose the great bodily injury enhancement, stating that the appellant suffered from a mild or moderate mental illness. The only enhancement imposed on appellant’s sentence was the one-year weapon enhancement. The court made appellant’s sentence on count three concurrent rather than consecutive. Section 1385, subdivision (a), however, expressly states that: “The reasons for the dismissal must be set forth in an order entered upon the minutes.” The clerk’s entry at page 307 of the clerk’s transcript does not state reasons for the dismissal. We are therefore required to remand the matter for the trial court to comply with subdivision (a) of section 1385. (People v. Bonnetta (Apr. 27, 2009, S159133) __ Cal.4th __ [2009 WL 110955].)
DISPOSITION
The case is remanded for the trial court to stay its sentence on count four and to stay its sentence on the weapon enhancement in count four. The court shall determine whether to impose or to strike the great bodily injury enhancement and, should it strike the enhancement, to do so upon a statement of reasons which are to be set forth in the clerk’s minutes. The court shall prepare an amended abstract of judgment reflecting these changes and forward it to the appropriate authorities. The judgment is otherwise affirmed.