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People v. Thunander

California Court of Appeals, Third District, Butte
Jul 31, 2008
No. C056969 (Cal. Ct. App. Jul. 31, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JEFFREY ARNE THUNANDER, Defendant and Appellant. C056969 California Court of Appeal, Third District, Butte July 31, 2008

NOT TO BE PUBLISHED

Super. Ct. No. CM026663

ROBIE, J.

A jury found defendant Jeffrey Arne Thunander guilty of felony assault with a deadly weapon and misdemeanor assault and defendant admitted he had been convicted of a prior serious felony. The trial court sentenced him to an aggregate term of 11 years in state prison for the assault with a deadly weapon and a serious felony conviction enhancement. The trial court also imposed a concurrent six-month sentence for the misdemeanor assault conviction.

On this timely appeal, defendant argues the trial court abused its discretion by failing to stay his six-month sentence for the misdemeanor conviction pursuant to Penal Code section 654, because the offense was not shown to have a separate objective from the conduct underlying his conviction for assault with a deadly weapon. Defendant also argues the trial court erred by ordering him to pay restitution to a person who was not named as a victim in any count for which he was convicted.

All further statutory references are to the Penal Code unless otherwise indicated.

We will affirm the concurrent six-month sentence, but strike the order of restitution.

FACTUAL AND PROCEDURAL BACKGROUND

On March 2, 2007, Tammy Arnold helped Janet Donnelly move her belongings out of the residence Donnelly had occupied near the end of Nimshew Road in Butte County. Defendant was Donnelly’s neighbor, living on the same road further down Butte Creek Canyon. The portion of Nimshew Road in Butte Creek Canyon is narrow and rocky, with no shoulder and a drop-off on one side. On most of the road, there is not enough space for two vehicles to pass each other, and the condition of the road requires four-wheel drive. This narrow road offered the only way out of the canyon from Donnelly’s residence.

Throughout the record, including at both the preliminary hearing in March 2007 and the trial in July 2007, Donnelly is referred to as both Janet Christine Donnelly and Janet Christine Bunce. Donnelly, who was married in June 2007, indicated to the court prior to being sworn as a witness at trial that she preferred to go by Bunce. We will refer to her as Donnelly, the name by which she is primarily designated throughout the record.

After Donnelly and Arnold finished packing and cleaning, and as they were about to leave Donnelly’s residence in Donnelly’s red four-wheel drive truck with Arnold in the passenger seat, defendant drove down the road in a blue Jeep and onto the driveway area between Donnelly’s residence and the road. The position of defendant’s Jeep blocked Donnelly from driving her truck onto the road, which was the only means of egress. Defendant yelled to Donnelly that he wanted to talk to her. Donnelly tried to drive her truck around defendant’s Jeep, but defendant moved his Jeep each time to continue blocking her truck from exiting.

This continued for about an hour and one-half, with defendant continually countering Donnelly’s attempts to drive her truck around his Jeep and off her property. Defendant was angry and yelling throughout the stand off. Arnold testified that defendant appeared to be “very inebriated.”

There was some dispute at trial as to the actual length of the stand off. Arnold offered differing testimony on direct examination and cross-examination. On direct examination, she estimated that the stand off lasted “an hour and a half, two hours maybe”; on cross-examination, she said the stand off lasted “[m]ore than one [hour], less than two.”

In fact, defendant’s counsel refers to the entire set of events as an “hour long, drunken effort” by defendant.

At some point, Arnold got out of Donnelly’s truck and tried to drag a horse trough from the side of the driveway so that Donnelly could drive past defendant’s Jeep onto the road. Arnold was situated between the two vehicles, with her back toward the Jeep. As she tried to drag the horse trough, defendant drove toward her, forcing her to jump out of the way and run back into the passenger seat of Donnelly’s truck.

Defendant then crashed his Jeep into the front of Donnelly’s truck and shut off the Jeep’s engine. After the collision, Arnold remained inside of Donnelly’s truck for a few minutes; during this time, she yelled for defendant to “stop and just let [them] leave.” Arnold also testified that at this time Donnelly appeared to be “very distraught,” and that “she was not breathing well, [was] crying, and her forehead was in the middle of the steering column, and her knuckles were white gripping [sic].” Although it had been daylight when defendant first blocked Donnelly and Arnold’s path, it was now dark outside.

About two minutes after the collision, Arnold exited Donnelly’s truck and approached the driver’s side of defendant’s Jeep, which was still nose to nose with Donnelly’s truck. Arnold stood three to four feet from the Jeep and again pleaded with him to “let [them] go.” Defendant then got out of the Jeep and lunged at Arnold with an object protruding from his closed hand that might have been a key. Arnold stepped back to avoid being struck. Defendant stuck her underneath her collarbone, however, causing a laceration from her left collarbone across to her right shoulder.

After defendant attacked Arnold, Arnold ran around the back of Donnelly’s truck while defendant chased her on foot. Arnold climbed back into the truck over Donnelly and told her, “‘Let’s go while we can. Let’s get out of here.’” While defendant was outside his vehicle, Donnelly was able to steer her truck around the Jeep and leave the area. About 20 minutes later, Donnelly and Arnold arrived at a location where Donnelly was able to call the police.

The Butte County District Attorney filed an information charging defendant with false imprisonment by violence/menace, assault with a deadly weapon (for trying to run down Arnold in his Jeep), and assault by means likely to produce great bodily injury (for striking Arnold with the object in his hand causing the laceration across her chest and shoulder). The information also included a prior conviction allegation.

A jury found defendant guilty of assault with a deadly weapon and the lesser included charge of misdemeanor assault instead of assault by means likely to produce great bodily injury. The jury was unable to reach a verdict on the false imprisonment charge, and the trial court declared a mistrial as to that count. Defendant subsequently admitted the prior conviction allegation.

The trial court sentenced defendant to an aggregate 11-year term in state prison, consisting of three years for the felony assault, doubled to six years as a strike, plus a five-year prior serious felony conviction enhancement. The trial court imposed a concurrent six-month sentence for defendant’s misdemeanor assault conviction. The trial court also ordered defendant to pay restitution to Arnold and Donnelly.

Defendant filed a timely notice of appeal.

DISCUSSION

I

The Concurrent Six-Month Sentence For Misdemeanor Assault Does Not Violate Section 654

Defendant contends that the trial court should have stayed the sentence for misdemeanor assault in light of his sentence for felony assault with a deadly weapon because he committed those crimes during “a single, indivisible course of criminal conduct undertaken with one objective: to prevent Arnold and Janet Donnelly from driving up the road out of Butte Creek Canyon.” Defendant contends that “because there was not substantial evidence that [he] had separate criminal objectives for his two [crimes], the trial court’s implicit finding to the contrary was incorrect.” We disagree.

A

Multiple Punishments Under Section 654

The initial inquiry in any application of section 654, which prohibits the imposition of punishment for more than one violation arising out of an act or omission which is made punishable in different ways by different statutory provisions, is to ascertain the defendant’s objective and intent. (People v. Beamon (1973) 8 Cal.3d 625, 639.) If the defendant entertained multiple criminal objectives that were independent of, and not merely incidental to, each other, he may be punished for independent violations committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (Ibid.) However, if all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)

B

Standard Of Review

The question whether the defendant entertained multiple criminal objectives is one of fact for the trial court, and its findings on this question will be upheld on appeal if there is any substantial evidence to support them. (People v. Akins (1997) 56 Cal.App.4th 331, 339, citing People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) We review the trial court’s findings “‘in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence.’” (People v. Green (1996) 50 Cal.App.4th 1076, 1085, quoting People v. Holly (1976) 62 Cal.App.3d 797, 803.)

C

The Record Contains Substantial Evidence That Defendant Acted With More Than One Criminal Intent And Objective For The Two Assaults

In support of his argument that he had only one criminal objective, defendant relies heavily on Perry, a case in which Division Eight of the Court of Appeal, Second Appellate District, held that a defendant’s sentence for vehicular burglary had to be stayed when the defendant was also sentenced for the greater offense of second degree robbery. (People v. Perry, supra, 154 Cal.App.4th at pp. 1523, 1527.) In Perry, the victim returned to his parked car, which had been locked with closed windows, only to discover the defendant inside. (Id. at p. 1523.) He shouted at the defendant, who jumped out holding the car stereo in one hand and a screwdriver or ice pick in the other hand. (Ibid.) As the defendant ran from the car, the victim chased him. (Ibid.) While attempting to escape, the defendant on several occasions stopped and assumed a fighting stance, brandishing the screwdriver/ice pick as a weapon. (Id. at p. 1524.) On appeal, the Court of Appeal invoked section 654 to stay the defendant’s sentence for vehicular burglary because the burglary and the robbery were both committed pursuant to a single primary objective. (Perry, at pp. 1525-1528.) “Although the robbery entailed a different type of action, i.e., the implied threat to use the screwdriver or ice pick, the underlying objective was necessarily identical: to steal [the victim]’s car stereo. It is reasonable to conclude that [the defendant] also wanted to evade capture, but escaping was merely incidental to, or the means of completing the accomplishment of, the objective of taking the stereo. Accordingly, it cannot be said that [the defendant] acted with multiple independent objectives in committing the burglary and the robbery.” (Id. at pp. 1526, 1527.)

Defendant claims “[t]he instant case is no different than Perry.” “While [defendant]’s two attacks on Arnold ‘entailed a different type of action,’ their ‘underlying objective was necessarily identical:’ to prevent Arnold and Donnelly from circumventing [defendant]’s makeshift road block [sic] and driving out of the Butte Creek Canyon.” Defendant argues that he “lashed out against Arnold . . . in response to her efforts to circumvent his road block [sic], and the intent to harm Arnold that can be inferred from [his] physical conduct, must be seen under Perry as ‘merely incidental to, or the means of completing the accomplishment of’ [defendant]’s primary objective of preventing the two women from driving out of the canyon.” Defendant argues that his “hour-long, drunken effort to forcefully detain Arnold and Donnelly in Butte Creek Canyon constituted a single, indivisible course of conduct undertaken with a single criminal objective.” “Accordingly, the trial court’s implicit finding of multiple criminal objectives on the part of [defendant] is not supported by substantial evidence.”

While defendant points out one particular inference that could be drawn based on the evidence, this is by no means the only inference that is supported by substantial evidence. Moreover, defendant’s reliance on Perry is misplaced. In Perry, the court found that “[t]he evidence supports only [one] objective of stealing a radio” because “if property is taken during a burglary and a robbery pertaining to the same property is committed during the escape, the objective is still essentially to steal the property.” (People v. Perry, supra, 154 Cal.App.4th at pp. 1526, 1527.) Here, on the other hand, it is not true that the evidence could support only one intent or objective. While the intent underlying the false imprisonment charge (of which defendant was not convicted) seems to have been defendant’s intent to prevent the two women from driving out of the canyon, the record contains substantial evidence that could lead to inferences that defendant harbored multiple criminal intents and objectives for the two assault charges.

We are guided by the decision of the Court of Appeal, First Appellate District, in People v. Nubla (1999) 74 Cal.App.4th 719. In that case, the defendant was convicted of assault with a deadly weapon and corporal injury on a spouse after committing several acts of violence, including pushing his wife onto a bed, causing her nose to bleed, pushing a gun into the back of her head, and then turning her over and putting the gun into her mouth, cutting her lip, and chipping her tooth. (Id. at pp. 723, 730.) The appellate court found that the trial court did not violate the section 654 prohibition against multiple punishments by imposing separate sentences for the two offenses. (Nubla, at pp. 730-731.) The appellate court noted that there was no question in the defendant’s case that he committed several acts of violence against his victim, but because defendant’s “act of pushing his wife onto the bed and placing the gun against her head was not done as a means of pushing the gun into her mouth, did not facilitate that offense and was not incidental to that offense.” The trial court was entitled to conclude that each act was separate for purposes of section 654. (Nubla, at p. 731.) In other words, under Nubla (and the sexual offense cases it draws on), it does not matter whether multiple physical assaults perpetrated against a single victim over a period of time could be broadly said to have been motivated by a single criminal objective (here, to facilitate the unlawful restriction of the women’s movement). (Id. at p. 731.) Rather, in such circumstances, section 654 does not bar multiple punishments as long as none of the criminal acts was committed as a means of committing any other criminal act, or facilitated the commission of any other criminal act, or was merely incidental to any other criminal act. (Nubla, at p. 731.)

Here, by similar reasoning, the trial court’s implicit finding that defendant had separate intents and objectives for the felony assault and the misdemeanor assault is supported by substantial evidence. Defendant’s act of trying to run over Arnold with his vehicle was not done as a means of striking her with the object in his hand, did not facilitate that later act, and was not merely incidental to that act. Accordingly, the trial court was entitled to conclude that each act had a separate intent and objective for the purposes of section 654.

The separate sentences are also justified based on the following reasoning. As defendant notes, it is a reasonable inference from the evidence that his intent in assaulting Arnold with his vehicle was to thwart her and Donnelly’s escape attempts, as the assault occurred when defendant drove at Arnold as she was attempting to clear the horse trough so that she and Donnelly could drive past defendant’s Jeep and leave the property. In contrast, defendant’s second assault on Arnold occurred only after he had turned off his Jeep and Arnold approached the driver’s side of his vehicle in the midst of a heated verbal exchange. It is a reasonable inference from these facts that defendant committed the second assault not to thwart the escape attempt, but with the intent of injuring Arnold or to stop her from yelling. Substantial evidence supports the inference that defendant, who admits to being intoxicated at the time, was so upset with Arnold’s verbal confrontation that his temper simply snapped, causing him to violently “lash[] out.”

Thus, it is not a foregone conclusion, as defendant argues, that his one and only intent for the two assaults on Arnold was to prevent the two women from leaving the canyon. The evidence we have just recounted is sufficient to support the trial court’s implicit finding of distinct intents and objectives for the felony assault and misdemeanor assault.

II

The Trial Court Erred By Ordering Restitution To Donnelly

Defendant argues that because Donnelly was not named as a victim in any count of which he was convicted, the trial court erred by ordering restitution to Donnelly. The order here was as follows: “Restitution to Tammy Arnold and Janet Donnelly in an amount that the Court reserves jurisdiction to set or modify, and or to the State Board of Control for restitution paid to the victims.”

The People concede that the trial court’s order for restitution to Donnelly should be stricken because defendant “was not convicted of a crime against Donnelly.”

We agree with both defendant and the People that in cases involving nonprobationary sentences, victim restitution is limited to losses caused by the conduct for which a defendant is convicted. (People v. Percelle (2005) 126 Cal.App.4th 164, 180-181.) Because defendant was convicted only for two assaults on Arnold, and not for a crime against Donnelly, the trial court had no authority to order restitution to Donnelly.

We need not direct the trial court to amend the abstract of judgment because the abstract properly reflects an order of restitution to Arnold only.

DISPOSITION

The judgment is modified by striking the order of restitution to Donnelly. As modified, the judgment is affirmed.

We concur, SCOTLAND, P.J., BUTZ, J.


Summaries of

People v. Thunander

California Court of Appeals, Third District, Butte
Jul 31, 2008
No. C056969 (Cal. Ct. App. Jul. 31, 2008)
Case details for

People v. Thunander

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JEFFREY ARNE THUNANDER, Defendant…

Court:California Court of Appeals, Third District, Butte

Date published: Jul 31, 2008

Citations

No. C056969 (Cal. Ct. App. Jul. 31, 2008)