Filed 2/21/18 P. v. Henry CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JARED MARIUS HENRY,

Defendant and Appellant.
H043252
(Santa Clara County
Super. Ct. No. C1488570)
Defendant Jared Marius Henry was convicted of several offenses following an incident in which he seriously injured his spouse (hereafter, victim) while he drove their vehicle under the influence of alcohol. He was sentenced to a total term of nine years in prison on one of four counts with the trial court imposing concurrent terms on the remaining three counts.
On appeal, Henry argues the trial court erred in imposing concurrent terms and that it should have instead stayed each of those three sentences pursuant to Penal Code section 654. Alternatively, he contends that the trial court should have stayed two of the three concurrent sentences.
As explained below, we agree that the trial court improperly imposed concurrent sentences on two of the three counts, and will modify the judgment accordingly.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. First amended information
Henry was charged by first amended information filed August 18, 2015, with felony assault with a deadly weapon (§ 245, subd. (a)(1), count 1), infliction of corporal injury on a spouse (§ 273.5, subd. (a), count 2), driving under the influence of alcohol and causing injury to another (Veh. Code, § 23153, subd. (a), count 3), and driving with a blood alcohol level of 0.08 percent or more and causing injury (id., subd. (b), count 4). The information also alleged that, in relation to all four counts, Henry personally inflicted great bodily injury (GBI) on the victim under circumstances involving domestic violence (§§ 1203, subd. (e)(3), 12022.7, subd. (e)). With respect to counts 1 and 2, it was alleged that Henry had personally used a dangerous and deadly weapon in the commission of those offenses (§ 12022, subd. (b)(1)). Finally, the information alleged that, with respect to counts 3 and 4, Henry had suffered two prior convictions for driving under the influence in violation of Vehicle Code section 23152.
B. Prosecution’s case
1. Victim’s testimony
The victim in this matter, testified that she was at home on the morning of July 18, 2014. Henry was drunk on the couch, a glass of vodka in his hand, and tried to start an argument with her. She did not want to argue, so she walked away and began folding laundry in the other room. Henry followed, still trying to argue with her, but victim ignored him.
Henry went into the bedroom, and victim next saw him with a bag full of clothes. Henry walked out the front door. Victim continued to fold laundry until she heard the car door open. She walked outside to tell him to come back into the house, but Henry shut the car door. Victim could not recall what Henry said to her when she asked what he was doing.
Victim tried to open the car doors, but Henry had locked them. She pounded on the window, yelling, “ ‘What are you doing? You’re drunk. You’re going to hurt somebody or yourself.’ ” Henry just looked at her and waved.
When Henry started the car, victim went to the passenger side door to see if it was unlocked. She was standing on the running board holding on to the door handle when Henry put the car into reverse and quickly backed out of the driveway. She called out for him to stop, but he put the car in drive and drove down the street. Victim held on because the car was going too fast for her to let go safely.
When they reached an intersection, Henry braked quickly and stopped “for a second” at the stop sign, but quickly accelerated before victim had a chance to step off. She yelled at him to stop, but Henry just looked at her and smiled. He turned the corner, then made another right turn to head back towards their house. Victim estimated he was driving about 40 miles per hour. He stopped briefly in the street near their driveway, but victim was too scared to try to get off. Henry accelerated again, jumping onto the curb, as victim called for him to stop. He smiled at her and continued driving, pinning victim against a light post. She could feel the post against the back of her head and her back. Henry drove slowly, then “peeled out again.”
Victim could feel her face pressed against the passenger side window as she rolled between the car and the light post. She fell to the ground and blacked out momentarily. She looked up and saw Henry halfway down the street, driving away.
Victim was unable to get up. Her hips and pelvis hurt, so she tried to crawl but could not manage that either. She called for help, and her neighbors came to her assistance, followed by an ambulance and the police. Victim was afraid that her children would be taken into protective custody if Henry went to jail and she was in the hospital, so she told her neighbors and police that she had been hit by a car. When she went to the hospital, she also did not tell them what happened, “[b]ecause [she] wanted to protect [Henry].”
Victim was treated for several abrasions, a fractured pelvis and fractured hips. She underwent two surgeries on her hips, with screws inserted in each hip. Victim was hospitalized for two weeks at the time, and at the time of trial, was still in physical therapy and undergoing pain management. She remained in a wheelchair until October that year.
Victim testified that Henry had previously acted violently toward her. In June 2014, Henry, victim and their two children drove to San Mateo to purchase fireworks. Victim drove because Henry was drunk. When they arrived, it was apparently “too early,” so they decided to drive home. Henry became verbally abusive toward victim as she drove home, yelling at her and repeatedly calling her a “bitch” and other names.
Victim pulled over at a car dealership and told him to get out because she did not want to put up with his abuse. Henry refused, and grabbed some of the children’s toys, throwing them out of the car. Henry was trying to push her out of the car so he could drive, but victim took the keys from the ignition. He started grabbing her hair and the back of her arms, trying to get her to give him the keys. This went on for perhaps 15 minutes, as victim honked the horn to unsuccessfully get the attention of anyone at the dealership. Henry eventually stopped and victim said, “ ‘If you’re ready to go home and stop then we’ll go home.’ ”
As they drove home, Henry was crying, telling her he was sorry. Victim did not report this incident to the police, either at the time or after the July 18 incident, because she did not want him to go to jail. She did not leave him because she was “afraid of him and his family and them taking my children away.” She was testifying now because she is “done being hurt” and wants to protect her children as much as possible.
On cross-examination, victim said that, although there were customers and employees at the car dealership, no one came to help her as she called out and honked the horn. Henry got out of the car and walked to the driver’s side to try to pull her out, but she locked the door. He got back in the passenger seat and then began grabbing her hair. She also admitted that, at the preliminary examination, she may have testified that the incident at the dealership lasted for an hour. Victim said she “didn’t keep track of the time, but I know it was longer than ten minutes.”
2. John Flores
Flores, who lived in the same neighborhood, was walking his dog at the park near Henry’s home. He heard yelling coming from one of the houses, then saw an SUV back out of a driveway with a woman hanging onto the passenger side. The SUV, driven by a young white male, drove down the street, with the woman standing on the running board and hanging on to the mirror and the door handle. Flores heard both the man and the woman yelling, but could not make out the words. In his estimation, the SUV was traveling 35 to 40 miles per hour.
Flores saw the SUV stop abruptly for maybe five seconds, then take off again before driving to the intersection and making a right turn. Flores estimated the SUV stopped at the intersection for about five seconds before making the turn. The woman was still hanging onto the vehicle.
A few seconds later, Flores saw the vehicle driving towards him from the other direction. The man stopped, “kind of abrupt[ly],” about 20 yards away and Flores could hear him yell, “ ‘Get off.’ ” He heard the woman yell back, “ ‘No. No. I can’t.’ ” The SUV was stopped for three to five seconds, then it drove into the driveway again at about 20 to 25 miles per hour. The SUV was in the driveway for another “15, 20 seconds,” or perhaps “10 to 15” seconds, as the two yelled at each other more, then the driver abruptly backed up again.
Flores saw the SUV drive up the street past a couple of houses at about 20 miles per hour, then it slowed to about five miles per hour and mounted the curb. The SUV drove slowly toward a light post. Flores saw the woman let go with one hand to avoid getting hit by the post. He did not believe that she hit the post. She fell to the ground, though, yelling about her leg.
The SUV drove away at about 40 to 45 miles per hour and made a left at the intersection. Flores ran over to the woman to try and help her. She was yelling about her leg and asked him to call 911. When Flores asked her what happened, she said her husband had been drinking and she did not want him to drive.
Flores could see that one or both of her pant legs were ripped and “she was hurting.” He did not have a cell phone so he ran back to his house to call the police. When he did so, he was told the police were already on their way. He ran back to find that police and paramedics were on the scene. As he watched, the SUV returned and, after it pulled into the driveway, the police took the driver into custody.
On cross-examination, Flores testified he did not see smoke coming from the SUV’s tires at any point or hear the tires screeching.
3. Stipulations to the jury
The jury was informed, by stipulation, that: (1) On July 18, 2014, Henry failed a series of field sobriety tests and his blood alcohol level was 0.246 percent; and (2) that Henry was informed, on November 19, 2012, that it was extremely dangerous to human life to operate a motor vehicle while under the influence of alcohol.
4. Dr. Jessica McBeth
Dr. McBeth testified as an expert in the diagnosis and treatment of pelvic fractures as well as nerve damage. She treated victim after she was admitted to Valley Medical Center in July 2014 and performed two surgeries on her: the first to repair her broken pelvis and the second to remove one of the screws inserted in the first surgery as Dr. McBeth believed it was compressing the nerve on the left side. Following the surgeries, victim was in a wheelchair for three months and has been going through recovery ever since. Victim has a neurological injury though which causes pain in her left thigh and there is a small chance of that pain resolving within two years.
C. Defense case
Henry’s sister testified that she spoke with victim either the last week of July or the first couple of weeks in August. Victim said she “was having some pain, . . . was very apologetic, [and] kept saying over and over again that the incident was her fault and that she wished she hasn’t [sic] run after [Henry].”
D. Jury verdict and sentencing
The jury found Henry guilty of assault with a deadly weapon (§ 245, subd. (a)(1), count 1), inflicting corporal injury on a spouse (§ 273.5, subd. (a), count 2), driving under the influence of alcohol causing injury to another (Veh. Code, § 23153, subd. (a), count 3), and driving under the influence of alcohol with a blood alcohol level of 0.08 percent and causing injury (id., subd. (b), count 4). The jury also found true the allegation that, in the commission of all four offenses, Henry inflicted great bodily injury on victim under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e).
In a bifurcated proceeding, the trial court found true the allegations that Henry had two prior convictions for driving under the influence in violation of Vehicle Code section 23152.
The trial court subsequently sentenced Henry, as follows: (1) on count 1, the upper term of four years plus the upper term of five years for the GBI enhancement for a total term of nine years; (2) on count 2, a concurrent term of seven years, consisting of the middle term of three years plus the middle term of four years for the GBI enhancement; and (3) on counts 3 and 4, two separate concurrent terms of six years, consisting of the middle term of two years plus the middle term of four years on the GBI enhancement. The trial court awarded custody credits of 512 days plus conduct credits of 76 days for total credits of 588 days. Various fines and fees were also imposed, none of which are relevant to this appeal.
Henry timely appealed.
II. DISCUSSION
On appeal, Henry argues the trial court erred in imposing concurrent sentences on counts 2, 3, and 4 since each of those convictions was based on the same indivisible course of conduct and had the same objective. Rather, those sentences should have been stayed pursuant to section 654. In the alternative, he contends that his sentences on counts 2 and 4 should be stayed.
The People concede that one of Henry’s convictions for driving under the influence of alcohol should have been stayed under section 654. The People do not agree that the trial court’s sentencing decisions were otherwise erroneous.
A. Legal principles and standard of review
Section 654 provides, in relevant part: “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.” (§ 654, subd. (a).) “The statute is intended to ensure that defendant receives punishment ‘commensurate with his culpability.’ ” (People v. McCoy (1992) 9 Cal.App.4th 1578, 1584.) “When confronted with offenses within the purview of section 654, the proper procedure is to stay execution of sentence on all but one of the offenses subject to this section.” (People v. Pena (1992) 7 Cal.App.4th 1294, 1312, italics omitted.)
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) Multiple crimes will constitute one act or omission under section 654 if they are part of the same course of criminal conduct and are committed with the same intent and objective. (People v. Capistrano (2014) 59 Cal.4th 830, 885.) “It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.” (People v. Harrison (1989) 48 Cal.3d 321, 335.) “While the ‘temporal proximity’ of multiple crimes is not determinative of the applicability of section 654 [citation], it is a relevant consideration in the analysis.” (People v. Evers (1992) 10 Cal.App.4th 588, 603, fn. 10.)
“When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective.” (People v. Islas (2012) 210 Cal.App.4th 116, 129.) “A trial court’s express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence.” (People v. Brents (2012) 53 Cal.4th 599, 618.)
B. Analysis
1. Count 4
We agree with the People’s concession that Henry’s sentence under count 4 should be stayed. Henry’s act of driving under the influence of alcohol and causing injury (count 3) was committed with the same intent and objective as his act of driving with a blood alcohol content of 0.08 percent or more and causing injury (count 4).
2. Counts 2 and 3
Turning to Henry’s argument that the trial court should have stayed his sentences on counts 2 and 3 as well, we disagree in part. There was substantial evidence presented to support the trial court’s implied determination that Henry acted with different intents and objectives in committing counts 1 and 2, but not count 3.
Victim testified that the morning of the incident, Henry was on the couch, drunk. When he tried to engage her in an argument, she walked away and ignored him. He then went into another room and, apparently, packed a bag to leave. He exited the house and victim heard the car door open, at which point she went outside to try and stop him from driving while intoxicated.
When Henry refused to get out of the car and locked the door, victim went to the passenger side and stepped onto the running board. He then backed out of the driveway and quickly accelerated down the street with victim clinging to the door handle and side view mirror. When she yelled at him to stop, he merely smiled at her and kept going. This act of speeding down a residential street with his terrified spouse hanging onto the side of his vehicle could reasonably have been inferred to be the conduct that supported his conviction for assault with a deadly weapon (count 1).
Henry’s conduct changed, however, when he arrived back at their house, having failed to dislodge victim merely by driving fast or making abrupt stops and starts. Flores testified that, after he saw the SUV return and pull into the driveway with victim still holding on to the passenger side door, the SUV remained in the driveway for 10 to 15 seconds as Henry and victim yelled at each other. Flores then saw Henry back out into the street and drove towards the light pole, causing victim to fall off. If nothing else, this is substantial evidence that Henry had the “ ‘opportunity to reflect and renew his . . . intent before committing the next [offense].’ ” (People v. Lopez (2011) 198 Cal.App.4th 698, 718.) Having reflected on his next course of action, Henry drove deliberately onto the curb and toward a light pole, apparently trying to scrape victim off the side of their car. Once she fell off, he again sped away, leaving her with a broken pelvis and other injuries. It was this separate conduct which supported his conviction for inflicting corporal injury on a spouse (count 2) and the trial court did not err in imposing a concurrent sentence on count 2.
As for count 3, though, we do not find substantial evidence to show that this offense was committed with a separate intent and objective. In count 3, Henry was charged with driving under the influence of alcohol and concurrently causing injury. The elements of this offense are: (1) driving a vehicle while under the influence of an alcoholic beverage or drug; (2) concurrently committing some act which violates the law or is a failure to perform some duty required by law; and (3) as a proximate result of such violation of law or failure to perform a duty, causing injury to another person. “ ‘To satisfy the second element, the evidence must show an unlawful act or neglect of duty in addition to driving under the influence.’ [Citation.] The unlawful act or omission ‘need not relate to any specific section of the Vehicle Code, but instead may be satisfied by the defendant’s ordinary negligence.’ ” (People v. Weems (1997) 54 Cal.App.4th 854, 858.)
The intent to assault victim was the unlawful act which raised Henry’s conviction for driving under the influence from a misdemeanor to a felony. There is no evidence that Henry committed any other unlawful act or omission which would support that felony DUI with injury conviction aside from his intent to assault victim. Thus, each of these offenses arose from a single act and a single objective, i.e., Henry’s driving while intoxicated with the intention of assaulting victim. Accordingly, the sentence on count 3 must also be stayed pursuant to section 654.
III. DISPOSITION
The trial court is ordered to correct the abstract of judgment to state that the punishments for counts 3 and 4 are stayed pursuant to Penal Code section 654.
As modified, the judgment is affirmed.






Premo, J.





WE CONCUR:






Elia, Acting P.J.








Grover, J.












People v. Henry
H043252