P. v. Alvarado

Filed 6/11/08 P. v. Alvarado CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Richard Todd Fields, Judge. Affirmed.

Lynelle K. Hee, 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, Lilia E. Garcia, Supervising Deputy Attorney General, and Elizabeth S. Voorhies, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant Giovanni Alvarado guilty of assault with a deadly weapon or by means of force likely to produce great bodily harm (Pen. Code,^[1] 245, subd. (a)(1), count 1), felony false imprisonment ( 236, count 2), and misdemeanor battery on a prior cohabitant. ( 243, subd. (e)(1), count 3.) The jury also found true the enhancement allegation that defendant personally used a deadly weapon during the commission of count 2. ( 12022, subd. (b)(1), 1192.7, subd. (c)(23).) Defendant admitted that he had served one prior prison term ( 667.5, subd. (b)) and had one prior strike conviction. ( 667, subds. (b) (i), 1170.12.) The trial court sentenced him to a total term of six years in state prison, as follows: the middle term of three years, doubled due to the strike prior, on count 1, plus a concurrent three-year term on count 2, which included the middle term of two years for the substantive offense and a one-year term for the weapon use enhancement, plus a concurrent 30-day term, local time. The court struck the term for the prison prior under section 1385.

On appeal, defendant contends that: 1) the trial court improperly instructed the jury on felony false imprisonment; and 2) the court should have stayed the sentence on count 2 pursuant to section 654. We affirm.

FACTUAL BACKGROUND

Defendant had been dating Nicole Cicero (the victim) for approximately 10 months. Defendant and the victim lived together for about three months, and she then moved in with her parents. On August 12, 2005, the victim broke up with defendant after arguing with him on the telephone. The next evening, he unexpectedly went to her house. Defendant asked her if she still wanted to be with him, and she said, No.

The victim called 911 crying and upset after defendant left. The 911 operator (the operator) said she needed to stop crying. After calming down, the victim proceeded to tell the operator the following: the victim broke up with defendant, and he came to her house. The victim made sure they were outside because he had gotten physical with her before. Defendant asked her if she wanted to be with him or not and she said she did not. He charged her, picked her up by the head, slammed her against the wall, and said, you see what I can . . . do to you? Defendant also whipped out a knife and said, see what I could do? Defendant held the knife against her. Then, he gave the knife to the victim and told her to stab him, saying, Thats the only way you are going to get me out of your life. The victim refused to stab him. Instead, she took the knife, closed it, and threw it out of reach.

When the operator momentarily put her on hold, the victim spoke to her brother on a different phone and told him what happened. Her conversation with her brother was also recorded on the 911 tape. The victim told her brother that defendant pulled out a knife like he was going to do something to [her] and that defendant picked her up by her head. She told her brother that defendant took off because she called the cops.

Meanwhile, the police arrived at the victims house. The victim was standing outside in the front yard. She was crying a lot and trembling. She had a hard time speaking, so Officer John Garcia had to wait a couple minutes for her to compose herself. The victim told Officer Garcia that she and her boyfriend just had an argument because she broke up with him. The victim broke up with defendant in the front porch area. When she told him, he placed his hands on her head and slammed her against the wall. The victim told Officer Garcia that, after defendant slammed her against the wall, he asked her why she was breaking up with him. Defendant then removed a knife from his pocket, pointed it at her while she was still up against the wall and told her to go inside. The victim went inside the house and sat on the couch. When Officer Garcia asked her why she did not try to run away, the victim said she was backed up against the wall and did not have anywhere to run. Once the victim sat on the couch, defendant stood in front of her, still holding the knife. Defendant held the knife up to her neck, two inches away from her. The victim thought defendant was going to kill her with the knife. Defendant said something about not wanting her to break up with him. At some point, defendant handed the knife to her and told her to go ahead and stab him, if she was going to break up with him. The victim told Officer Garcia that she threw the knife across the room and threw defendants keys out the door. Defendant went outside to get his keys, and then the victim called the police.

At trial, the victim testified, but essentially said she did not recall the statements she made to the 911 operator because she had drugs in her system at that time. The victim was given, and read, portions of the transcript of the 911 call. However, she said the transcript did not help refresh her memory. Instead, she testified that she had just gotten out of the shower when defendant arrived at her house that night. Her brother answered the door and told her defendant was there. The victim invited defendant inside, and they went to the kitchen. Defendant brought her some roses, so she told him to put them in a vase, while she fixed her hair. When she returned to the kitchen, defendant asked her if she still wanted to be with him. She said, No. They both went outside and sat on the porch to talk about why they were breaking up, then they went inside, and they both cried. Defendant started moving some of his belongings from her house to his car. Defendant and the victim went back to the kitchen table to discuss the breakup some more. There was a knife on the table. Since the roses defendant brought her were cut at a slant, the victim assumed that he had cut them with that knife. Then the victim went and sat on the couch, and defendant took the knife and walked in front of the couch. The victim testified that defendant did not at all put the knife at [her] throat. She said that he threw the knife down, took off his shirt, and said, The only way youre going to get me out of your life is if you stab me. The victim picked up the knife and said, Are you crazy? Im not going to do that. Then, she threw the knife away. Defendant was crying and went outside. The victim took his keys and threw them outside, locked the door, and told him to leave. When asked why she called 911, the victim testified that she called because they were both pretty shooken [sic] up and she had never seen defendant in the state of mind he was in, when he talked about her stabbing him.

ANALYSIS

I. The Court Properly Instructed the Jury on False Imprisonment

with the Standard Language of Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 1240

Defendant argues that his conviction for false imprisonment by means of violence or menace must be reversed because the definition of menace, as given to the jury in accordance with CALCRIM No. 1240, created a mandatory presumption that relieved the prosecution of its burden of proof. We disagree.

Section 236 defines the crime of misdemeanor false imprisonment as the unlawful violation of the personal liberty of another. The crime of false imprisonment becomes a felony [i]f such false imprisonment be effected by violence, menace, fraud, or deceit . . . . [Citation.] (People v. Matian (1995) 35 Cal.App.4th 480, 484.) Convictions for felony false imprisonment involving menace generally fall into two categories: 1) cases where the defendant used a deadly weapon; and 2) cases where the defendant verbally threatened harm. (Id. at pp. 485-486.)

Here, the court instructed the jury with CALCRIM No. 1240, as follows: [The] defendant is charged in Count 2 with false imprisonment by violence or menace, felony false imprisonment. To prove the defendant is guilty of this crime, the People must prove that: One, the defendant intentionally restrained or confined or detained someone[,] or caused that person to be restrained or confined or detained by violence or menace; and two, the defendant made the other person stay or go somewhere against that persons will. [] Violence means using physical force that is greater than the force reasonably necessary to restrain someone. Menace means a verbal or physical threat of harm, including use of a deadly weapon. The threat of harm may be express or implied.

Defendant now argues that the definition of menace given by the court constituted a mandatory presumption because it told the jury that the element of menace was satisfied if the jury determined that he used a deadly weapon. In other words, he claims that this definition removed an element of the offense from the jury and relieved the prosecution of its burden of proof.

A mandatory presumption tells the trier of fact that if a specified predicate fact has been proved, the trier of fact must find that a specified factual element of the charge has been proved, unless the defendant has come forward with evidence to rebut the presumed connection between the two facts. [Citations.] In criminal cases, a mandatory presumption offends constitutional principles of due process of law because it relieves the prosecutor from having to prove each element of the offense beyond a reasonable doubt. [Citations.] (People v. Williams (2005) 130 Cal.App.4th 1440, 1444-1445 (Williams).)

In Williams, the defendant similarly argued that Vehicle Code section 2800.2 employed a mandatory presumption. Vehicle Code section 2800.2, subdivision (a), provides that when a person drives in a willful or wanton disregard for the safety of persons or property while fleeing or attempting to elude a pursuing peace officer in violation of section 2800.1, the person is subject to prosecution for either a felony or a misdemeanor. [Citation.] (Williams, supra, 130 Cal.App.4th at p. 1444.) Vehicle Code section 2800.2, subdivision (b), provides that [f]or purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more [specified traffic] violations . . . occur, or damage to property occurs. The defendant argued that Vehicle Code section 2800.2, subdivision (b) employed a mandatory presumption by describing [the willful or wanton disregard for the safety of persons or property element] of the offense in terms of specific Vehicle Code violations . . . . (Ibid.)

The Williams court disagreed, explaining that there is no impermissible mandatory presumption when a statute creates a rule of substantive law by defining in precise terms conduct that establishes an element of the offense as a matter of law. [Citations.] (Williams, supra, 130 Cal.App.4th at p. 1445.) The court stated that Vehicle Code section 2800.2, subdivision (b) simply define[d] the element of a willful or wanton disregard for the safety of persons or property as behavior that include[d] driving while fleeing or attempting to elude a pursuing peace officer, during which time three or more specified traffic violations occur[red] or damage to property occur[red]. (Williams, supra, at p. 1446.) The court asserted that it was emphatically the role of the Legislature, within constitutional limits, to define offenses and prescribe punishments. [Citations.] [Citation.] (Ibid.) The court ultimately rejected the defendants claim that the trial court erred by instructing the jury in accordance with the statute, in light of its conclusion that Vehicle Code section 2800.2, subdivision (b) establishe[d] a rule of substantive law rather than a presumption that varie[d] the burden of proof. (Williams, supra, at p. 1446.)

Similarly, here, CALCRIM No. 1240 simply defines the element of menace as behavior that includes use of a deadly weapon. The instruction did not remove that element of the offense from the jury here, since it neither required nor permitted the jury to make any particular finding. The jury still had to resolve the question of menace by determining whether defendant employed the specified means (i.e., use of a deadly weapon or verbally threatened harm) to effect an unlawful restraint or detention of the victim. Contrary to defendants claim, the jury still had to determine whether the prosecution met its burden of proof as to this element of the charged offense.

Thus, we conclude that the court properly instructed the jury with CALCRIM No. 1240.

II. The Trial Court Did Not Violate Section 654

By Imposing Concurrent Sentences on Counts 1 and 2

Defendant argues that the trial court erred in ordering the sentence on count 2 (false imprisonment) to run concurrent to the sentence on count 1 (assault), rather than staying the sentence on count 2 under section 654. He claims that the court misunderstood the purpose and application of section 654, focusing on whether each crime constituted a separate act rather than [his] intent in committing the crimes. He argues that the assault and the false imprisonment were part of an indivisible course of conduct, since they were inextricably linked together and committed for the single objective of moving [the victim] back into the house. We disagree.

A. Section 654 and Standard of Review

Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] (People v. Deloza (1998) 18 Cal.4th 585, 591 (Deloza).) Whether a course of criminal conduct is a divisible transaction which could be punished under more than one statute within the meaning of section 654 depends on the intent and objective of the actor. [Citation.] (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) If a defendant entertained multiple criminal objectives which 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. (People v. Beamon (1973) 8 Cal.3d 625, 639.) Whether a course of criminal conduct violating more than one penal statute is committed with a single criminal intent or with multiple criminal objectives is ordinarily a question of fact for the trial court, whose implied finding of multiple criminal intent will be upheld if supported by substantial evidence. [Citations.] (People v. Green (1988) 200 Cal.App.3d 538, 543; People v. Blake (1998) 68 Cal.App.4th 509, 512.)

B. Defendant Had Multiple Objectives

The evidence supports a reasonable inference that defendant had separate intents in assaulting the victim and in falsely imprisoning her. First, as argued by the prosecution, the assault conviction could have been based on defendants act of slamming the victims head against the porch wall, saying, you see what I can do to you? The assault also could have been based on defendants act of holding the knife to the victims neck when she was sitting on the couch, inside the house. The victim thought he was going to kill her with the knife then. Furthermore, the false imprisonment conviction could have been based on defendants act of pulling out the knife, while they were out on the porch, and ordering the victim to go into the house. In other words, defendant either: 1) assaulted the victim on the porch, and then falsely imprisoned her and forced her to go inside the house; or 2) falsely imprisoned the victim on the porch, and then assaulted her inside the house on the couch. Under either scenario, the assault was a distinct act from the false imprisonment. Contrary to defendants contention, all of the acts were not committed for the single objective of moving [the victim] back into the house.

Defendant argues that the trial court erred in failing to stay the sentence on count 2, since it found that the offenses were all part of one course of conduct. He points to the courts comments when discussing its reason for ordering the terms concurrent. After announcing its intention to run the sentence on count 2 concurrent, the court stated: In making that decision, the Court has reviewed the sentencing rules, in particular, [California Rules of Court, r]ule 4.425, and the factors the Court is directed to look at whether or not the crimes and their objectives were independent of each other, and the Court finds they are not[;] its all part and parcel of one criminal course of conduct related to a break-up of a relationship. [] Whether or not the crimes were committed at different times or separate places rather than being committed so closely in time and place as to indicate a single period of abhorrent behavior. All of this was at the same time, at the same place, and it indicates a single period of abhorrent behavior. [] The acts were separate to the extent that they involved distinct acts. So I did not see a 654 situation, but clearly theyre all part of one course of conduct, and I feel that they do represent a single period of abhorrent behavior, so Im inclined to run that concurrent. (Italics added.)

Defendant specifically points out that the court found that the crimes and their objectives were not independent of each other, and that they were part and parcel of one criminal course of conduct related to a break-up. In light of these findings, defendant argues that the court should have stayed the sentence under section 654. However, the court made these findings in the context of determining whether to order defendants sentences to run concurrent or consecutive. California Rules of Court, rule 4.425 (rule 4.425) provides, in relevant part: Criteria affecting the decision to impose consecutive rather than concurrent sentences include: [] (a) Criteria relating to crimes[.] [] Facts relating to the crimes, including whether or not: [] (1) The crimes and their objectives were predominantly independent of each other; []  (2) The crimes involved separate acts of violence or threats of violence; or [] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. Thus, the court was simply reiterating the language of rule 4.425 in making its ruling to run the sentences concurrent.

Furthermore, the question of whether sentences should be concurrent or consecutive is separate from the question of whether section 654 prohibits multiple punishment. [Citation.] (Deloza, supra, 18 Cal.4th at p. 594, italics added.) Thus, the court made the findings at issue only in determining that the sentences should be concurrent. Moreover, the court additionally and specifically found that [t]he acts were separate to the extent that they involved distinct acts. So [the court] did not see a 654 situation . . . .

Because the evidence supported a finding that defendant had separate objectives in assaulting the victim and falsely imprisoning her, defendant was properly convicted of both offenses, and the trial court correctly imposed sentences for both convictions.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ HOLLENHORST

J.

We concur:

/s/ RAMIREZ

P.J.

/s/ McKINSTER

J.

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^[1] All further statutory references will be to the Penal Code, unless otherwise noted.