Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIF123265. Richard T. Fields, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant Terry Duane Woodward appeals from a judgment and sentencing following a jury trial. He contends the concurrent sentences imposed by the trial court should have been stayed pursuant to Penal Code section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
When he was 32 years old, defendant began a romantic relationship with the victim, who was 17 years old. They had a daughter together (the child) when the victim was still a minor. The victim’s father disapproved of the relationship because of the age difference. Approximately two years after the child was born, defendant and the victim were separated. The victim was living with the child and her father in her father’s home. Defendant and the victim were involved in a custody proceeding over the child. The victim had obtained a restraining order that was in effect on April 24, 2005. The order barred defendant from going within 100 yards of the victim or the house where she lived. Defendant had visitation with the child every other weekend and on Wednesdays.
On the evening of April 24, 2005, defendant appeared at the home where the victim was living with her father and the child. When defendant arrived, the father was outside preparing to leave for work. The victim was inside the house with the child. While the victim watched through a window, her father told defendant to go home because the victim did not want to speak to him then. The father assumed defendant would just leave and, based on defendant’s demeanor, he did not expect defendant to become violent. The father drove away because he was in a hurry to get to work. However, defendant lingered on the porch. Defendant then went inside the house and found the victim and the child in the victim’s father’s bedroom. The victim testified defendant was angry and smelled of alcohol. Defendant grabbed the victim by the throat and began squeezing her neck with both hands and pushed her into a closet. The child began to scream. While defendant and the victim were struggling, the victim was able to dial 911. Defendant objected to the call stating he did not want to go to jail. The victim was able to run out of the house and hide. Defendant took the child and drove away. When the police arrived, the victim appeared frightened and had red marks and bruising on her neck. She told the police officer what had happened.
After defendant drove away with the child, he went to the restaurant where the victim’s father worked. The father was outside in the parking lot loading his car for deliveries when defendant arrived. Defendant walked up to the victim’s father and punched him on the left side of his face, which knocked him to the ground. Defendant hit the victim’s father several times more while he was on the ground; he ripped his shirt off and broke his glasses. At trial, the prosecution presented testimony from the victim, her father, a witness who was present when defendant attacked the victim’s father, and the police officer who made contact with the victim just after the incident at her father’s home. Because the victim admitted previous lies and inconsistent statements, the defense was able to seriously attack her credibility at trial. In addition, the defense was able to cross-examine the victim with questions suggesting that she had a motive to lie and to provoke defendant. Defense counsel was able to pose questions during cross-examination which suggested defendant may have had an understandable reason to violate the protective order and to take the child from the home. Defendant did not testify at trial, but members of his family testified on his behalf.
A jury convicted defendant of corporal injury in violation of section 273.5, subdivision (a) (count 1); dissuading a witness without threat of force or violence in violation of section 136.1, subdivision (b)(1) (count 3); battery against the victim’s father in violation of section 242 (count 4); and failure to abide by a protective order in violation of section 273.6, subdivision (a) (count 5). In a bifurcated proceeding, the trial court considered evidence of two alleged prior convictions and found them to be true. These prior convictions included possession of a controlled substance in 2003 and manslaughter in 1994. Since the manslaughter in 1994 was a serious or violent felony, the trial court found it qualified as a strike pursuant to section 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1).
In count 2, defendant was charged with making an unequivocal, unconditional, immediate and specific criminal threat in violation of section 422. The jury found defendant not guilty of this charge. In count 3, defendant was charged with a violation of section 136.2, subdivision (c)(1), dissuading a witness with a threat of force, or violence. The jury also found him not guilty of this charge, and of the lesser included offense of attempting to dissuade a witness with threat, force, or violence. However, the jury did find defendant guilty of the lesser included offense of dissuading a witness without threat of force or violence in violation of section 136.1, subdivision (b)(1).
The trial court imposed an aggregate prison term of eight years. To reach this sentence, the trial court imposed the middle term of three years for corporal injury of the victim (count 1), which was deemed the principal count, and doubled it to six years as a result of the prior strike. The trial court also imposed a concurrent middle term of two years for dissuading a witness (count 3). Concurrent sentences were found by the trial court to be appropriate because the offenses were committed so closely in time and place as to indicate a single period of aberrant behavior. For battery on the victim’s father and for violating the protective order (counts 4 and 5), the trial court imposed concurrent terms of 90 days in custody with credit for time served, which resulted in a “net zero.” Because it concluded defendant served a prison term for each of the two prior convictions, within the meaning of section 667.5, subdivision (b), the court further imposed two consecutive one-year terms.
DISCUSSION
Defendant contends the prison terms on count 3 (dissuading a witness) and count 5 (violating a protective order), which were imposed to run concurrently with the sentence on count 1 (corporal injury), should have been stayed pursuant to section 654. According to defendant, the record shows these offenses fall within the section 654 prohibition against multiple punishments because they are indivisible from the corporal injury offense (count 1) in that they were committed closely in time and place and shared a common criminal objective. He claims the record demonstrates his single objective was to remove the child from the home where the victim and the child were living. The trial court did not discuss or make any specific findings on the application of section 654 during the sentencing hearing. As a result, we assume the record reflects a determination that each crime had a separate objective. (See, e.g., People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Section 654, subdivision (a), provides as follows: “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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” “The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although these distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one of the separate offenses arising from the single act or omission -- the offense carrying the highest punishment. [Citations.]” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) However, if the acts were independent and none was merely incidental to another, the defendant may be punished separately for each offense even if the acts were committed closely in time and space. (People v. Hicks (1993) 6 Cal.4th 784, 789.) “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, supra, 90 Cal.App.4th at p. 1312.)
Here, we disagree with defendant’s argument that the record demonstrates he had a single objective when he committed counts 1, 3, and 5. Rather, we agree with the People’s contention that substantial evidence supports an implied finding of three separate objectives as to these offenses. As defendant contends, the evidence does show the offenses occurred in rapid succession during a single occasion at the same location. However, it can also be inferred from the evidence that defendant’s initial objective when he arrived at the home was to violate the protective order, because he wanted to take the child from the victim, whether for justifiable reasons or not, or alternatively, because he wanted to see or speak to the victim and/or the child.
Next, it can be inferred defendant became upset after the victim’s father told him to leave, thereby denying him access to what he wanted. As a result, the evidence suggests defendant decided not to just leave as directed, but to achieve his second and new objective of expressing his anger at the victim for being rebuffed by her father. Evidence of defendant’s later attack on the victim’s father at his place of employment also supports this inference of a second and new objective to express anger, not only at the victim, but also at her father. Therefore, section 654 does not preclude a separate sentence for a second crime that is discrete from the initial offense of violating the protective order. His second, new objective was to express his anger in a violent manner toward the victim and then her father.
Finally, it can be inferred defendant developed a third, new, and different objective to dissuade the victim from reporting his action when she dialed 911 during their altercation. At this point, it is apparent defendant’s objective was to attempt to avoid responsibility for his attack on the victim. The circumstances suggest defendant had a chance at this point to simply leave because he realized the victim had dialed 911, but he chose instead to try to convince her not to call the police. The record indicates defendant had a strong motive for doing so, particularly when he knew he had prior offenses which would result in an increased penalty. Therefore, we cannot conclude section 654 requires a stay and precludes separate sentences as to counts 1, 3, and 5.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, J., KING, J.