Opinion
B161823.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. DARNELL DEVON WHEAT, Defendant and Appellant.
Julia S. Swanson, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jamie L. Fuster, Supervising Deputy Attorney General, and Erin Pitman, Deputy Attorney General, for Plaintiff and Respondent.
Darnell Devon Wheat appeals from the judgment entered following his convictions by jury of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a); count one), assault with a firearm (Pen. Code, § 245, subd. (a)(2); count two), and criminal threats (Pen. Code, § 422; count three), each with firearm use (Pen. Code, § 12022.5, subd. (a)), and with admissions that he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)), and a prior serious felony conviction (Pen. Code, § 667, subd. (a)). He was sentenced to prison for 15 years.
In this case, we hold that multiple punishment for the above offenses did not violate Penal Code section 654. Moreover, we will direct the sentencing court to amend its minute order and the abstract of judgment to reflect that the sentencing court imposed a five-year enhancement pursuant to Penal Code section 667, subdivision (a), and not pursuant to Penal Code section 667.5, subdivision (b).
FACTUAL AND PROCEDURAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103), the evidence at trial, the sufficiency of which is undisputed, established that on January 9, 2002, Shamiqua Robinson was driving her pickup truck in which appellant and Dionna Wheat, appellants wife, were passengers. A friend named Mark, and the 18-month-old son of appellant and Dionna were also passengers. Robinson, Dionnas cousin, was taking the group to Dionnas aunts house. Dionna was in the front passenger seat; the remaining passengers were in the back seat.
Appellant wanted Robinson to drive them to a business so he could look at it; appellant and Mark were planning to rob the business. Dionna objected, and she and appellant argued. En route to the business, appellant repeatedly punched Dionna in the back of the head and on her neck. After they arrived at the gas station, a police car appeared and Robinson drove the group away.
Subsequently, appellant repeatedly hit Dionna on the back of the head, and kicked her on her "back side." Appellant, angry that Dionna did not want to participate in the robbery, pointed a cocked and loaded .9-millimeter handgun at the back of Dionnas head. Dionna knew the gun was loaded and that its safety was off. Appellant told Dionna, "You think life is a joke, I will kill you right now." Appellant also told Dionna that she thought she was perfect, and that she might as well go to heaven and visit her mother, who was deceased. Appellant told Dionna that the guns safety was off. Dionna was scared and thought appellant would kill her. Dionna and the child began crying. Robinson told appellant to put away the gun, and appellant complied.
Dionna turned around and appellant punched her in the face. Dionnas nose bled profusely and her nose and mouth became swollen. Appellant later had Robinson drop off Dionna and the child at Dionnas aunts house. Appellant presented no defense witnesses.
Appellant was sentenced to prison for 15 years, consisting of the three-year middle term for assault with a firearm, doubled pursuant to the Three Strikes law, plus the four-year upper term for the firearm use enhancement, plus five years for the Penal Code section 667, subdivision (a)(1), enhancement, with concurrent three-year and two-year middle terms, each doubled pursuant to the Three Strikes law, for corporal injury upon a spouse, and criminal threats, respectively.
CONTENTIONS
Appellant contends: "counts 2 and 3 arise out of a single course of conduct requiring sentence to be stayed under [Penal Code] section 654 ." Respondent, in a footnote in respondents brief, contends that the trial court should be directed to correct its minute order and the abstract of judgment to reflect that the court imposed a five-year enhancement pursuant to Penal Code section 667, subdivision (a), and not pursuant to Penal Code section 667.5, subdivision (b).
DISCUSSION
1. No Impermissible Multiple Punishment Occurred.
Penal Code section 273.5, subdivision (a), provides, in relevant part, "Any person who willfully inflicts upon a person who is his or her spouse, . . . corporal injury resulting in a traumatic condition, is guilty of a felony, . . ." Subdivision (c), provides, "As used in this section, traumatic condition means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force."
Assault with a firearm, a violation of Penal Code section 245 subdivision (a)(2), requires that a defendant, with a firearm, commit an assault. An "assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790.) The defendant must be subjectively aware of the facts giving rise to the risk of injury, but need not be subjectively aware of that risk. (Id. at p. 788.)
Penal Code section 422, states, in relevant part, "any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety, shall be punished . . . ."
In People v. Perez (1979) 23 Cal.3d 545, 153 Cal. Rptr. 40, 591 P.2d 63, the Supreme Court observed, ". . . it is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez , supra, 23 Cal.3d at p. 551.)
Perez also observed, "on the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Perez , supra, 23 Cal.3d at p. 551.)
"The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. [Citations.]" (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) Where, as here, the trial court made no express findings on the multiple punishment issue, we examine whether substantial evidence supports its implied findings. (People v. Nelson (1989) 211 Cal. App. 3d 634, 638, 259 Cal. Rptr. 549.)
Appellants commission of assault with a firearm, a violation of Penal Code section 245, subdivision (a)(2), commenced when he pointed the cocked and loaded firearm at the back of Dionnas head, and ended when he removed it at Robinsons direction. It was within that period of time that appellant committed criminal threats in violation of Penal Code section 422 by verbally threatening to kill Dionna. And after the assault with a firearm ceased, appellant committed corporal injury upon a spouse in violation of Penal Code section 273.5, subdivision (a), by striking Dionna in the face, causing her nose to bleed profusely, and causing her mouth and nose to swell.
Although appellant claims he committed only one assault in the present case, that is, from the time he first struck Dionna in the back of the head to the time he last struck her in the face, we note appellant was convicted of assault with a firearm, and we must decide whether appellant was impermissibly punished as to that offense.
Only this conduct by appellant of striking Dionna in the face constituted corporal injury upon a spouse. Initially, appellant repeatedly hit her in the back of the head and kicked her, but there was no substantial evidence that that conduct resulted in a traumatic condition.
Multiple punishment for assault with a firearm and criminal threats was not barred by Penal Code section 654. In the present case, appellant did not use the gun or commit criminal threats before he put the loaded gun to Dionnas head. After he put the gun to Dionnas head, and with the gun in that position, he verbally threatened to kill her then and told her the guns safety was off, thereby verbally connecting his threat to the gun. Dionna was scared, thought appellant would kill her, and began crying. Appellant later removed the gun, and did not subsequently use the gun or commit criminal threats.
Thus, there is arguably evidence that appellant committed assault with a firearm in violation of Penal Code section 245, subdivision (a)(2), to assist his commission of a violation of Penal Code section 422. However, even if appellant committed assault with a firearm to commit a violation of Penal Code section 422, we believe appellant committed assault with a firearm with two objectives. One criminal objective may have been to assist his commission of a violation of Penal Code section 422, causing Dionna subjectively to be in fear for her safety as a result of the firearm use (and whether or not there was an objective risk to her safety). But even if so, appellant went beyond that criminal objective and had the further criminal objective to do an act which, by its nature, would probably and directly result in the application of physical force against Dionna, that is, appellant criminally intended to do an act which exposed Dionna to an objective risk of injury (and was aware of the facts giving rise to that objective risk). Thus, even if one criminal objective of the assault with a firearm was to assist the commission of a violation of Penal Code section 422 (and even if the harboring of that intent, by itself, might have rendered multiple punishment for assault with a firearm and criminal threats improper), that assault had an additional independent criminal objective. Appellants punishment for assault with a firearm and criminal threats did not violate Penal Code section 654.
Nor was appellant impermissibly punished for assault with a firearm and corporal injury to a spouse. Even if, as indicated above, appellant committed assault with a firearm with two criminal objectives, that is, (1) to threaten to commit a crime resulting in death or great bodily injury and causing Dionna subjectively to fear, all in violation of Penal Code section 422, and (2) with a firearm, to do an act which exposed her to the objective risk of injury, appellant had a still different criminal objective when committing corporal injury upon a spouse. For the trial court reasonably could have concluded that it was after Robinson told appellant to put away the gun, and appellant complied, that he, as a vengeful afterthought, punched Dionna in her face, causing her nose to bleed profusely, and causing her mouth and nose to swell. That is, the trial court reasonably could have concluded that when appellant punched Dionna in the face, his criminal objective had changed to an effort to use nonlethal force to actually injure Dionna and cause a traumatic condition.
Similarly, appellant was not impermissibly punished for criminal threats and corporal injury upon a spouse. Appellants criminal objective in committing a violation of Penal Code section 422, was to threaten to commit a crime resulting in death or great bodily injury, causing Dionna subjectively to fear. The trial court reasonably could have concluded that it was after appellant put away the gun that the threat to cause death or great bodily injury ceased, and appellant, as a vengeful afterthought, punched Dionna in her face, at which time his criminal objective changed to an effort to use nonlethal force to actually injure Dionna and cause a traumatic condition. (Cf. People v. Solis (2001) 90 Cal.App.4th 1002, 1021-1022 [no impermissible multiple punishment for corporal injury to a spouse and violation of Penal Code section 422; as to corporal injury, the objective is to injure, as to criminal terrorist threats, the objective is to frighten].)
Appellant claims multiple punishment as to all counts violated Penal Code section 654. He asserts that, by committing the offenses, he "intended to achieve a single objective. Appellants goal was to scare his wife into showing him respect, letting him to [sic] what he wanted to do." The trial court reasonably could have concluded that appellants criminal threat and assault with a firearm indicated he wanted to kill his wife, not merely scare her. Moreover, appellants characterization of his objective is too "broad and amorphous[,]" (People v. Harrison (1989) 48 Cal.3d 321, 335, 256 Cal. Rptr. 401, 768 P.2d 1078) rewarding greater criminal ambition with lesser punishment. (Ibid.) Further, Penal Code section 654, prohibits multiple punishment for offenses only when they are committed to achieve the same criminal objective.
2. The Sentencing Minute Order And Abstract Of Judgment Must Be Amended.
The reporters transcript reflects that, at sentencing on September 18, 2002, the sentencing court imposed a five-year prison term enhancement pursuant to Penal Code section 667, subdivision (a). However, respondent, in a footnote in respondents brief, correctly claims without dispute that the sentencing minute order and abstract of judgment erroneously reflect that the enhancement was imposed pursuant to Penal Code section 667.5, subdivision (b). We will direct the sentencing court to correct its minute order and the abstract of judgment accordingly. (People v. Humiston (1993) 20 Cal.App.4th 460, 466; People v. Solorzano (1978) 84 Cal. App. 3d 413, 415, 417, 148 Cal. Rptr. 696.)
DISPOSITION
The judgment is affirmed. The sentencing court is directed to amend its September 18, 2002 minute order and the abstract of judgment to reflect that the sentencing court imposed a five-year prison term enhancement pursuant to Penal Code section 667, subdivision (a), and not pursuant to Penal Code section 667.5, subdivision (b), and the sentencing court is directed to forward the amended abstract of judgment to the Department Of Corrections.
KLEIN, P.J., ALDRICH, J., we concur.