P. v. Lopez

Filed 2/5/08 P. v. Lopez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed as modified with directions.

A jury convicted Tito Odilon Lopez of torture (Pen. Code,^[1] 206; count 1); assault and battery ( 240, 242; count 2)^[2]; kidnapping with the infliction of great bodily injury causing permanent paralysis ( 207, subd. (a), 12022.7, subds. (b) & (e); count 3);

forcible rape ( 261, subd. (a)(2); count 4); forcible oral copulation with the use of a deadly and dangerous weapon ( 288a, subd. (c), 667.61, subds. (b)(c) & (e), 12022.3, subd. (a); count 5); assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); count 6); assault with a deadly weapon ( 245, subd. (a)(1), 1192.7, subd. (c)(23); count 7); corporal injury to a spouse/roommate with the use of a deadly weapon ( 273.5, subd. (a); count 8); corporal injury to a spouse/roommate with infliction of great bodily injury causing permanent paralysis ( 273.5, subd. (a), 12022.7, subds. (b) & (e), 12022.9; count 9); making a criminal threat ( 422; count 10); and false imprisonment with use of a deadly weapon and infliction of great bodily injury causing permanent paralysis ( 236, 237, subd. (a), 12022, subd. (b)(1), 12022.7, subds. (b) & (e), 12022.9; count 11).

The trial court sentenced Lopez to prison for an aggregate term of 30 years, eight months to life, consisting of an indeterminate term of 15 years to life for the count 5 forcible oral copulation, with a consecutive life term for the count 1 torture, and a consecutive determinate term of 15 years, eight months on counts 3, 4, 6 and 10, which included an eight-year upper term for the count 3 kidnapping charge. The court imposed and stayed under section 654 sentences on counts 7, 8, 9 and 11.

Lopez appeals, contending that there was no substantial evidence to support the finding that he personally used a deadly weapon in the commission of the count 5 forcible oral copulation; that the count 11 conviction for false imprisonment must be stricken because it is a lesser included offense of the count 3 kidnapping; that the sentence for the count 10 criminal threats offense must be stayed under section 654 because there is no indication it was based on a threat other than those which were part of the course of conduct underlying the kidnapping and torture convictions; and that the upper term sentence on count 3 violated the Sixth and Fourteenth Amendments as set forth in Cunningham v. California (2007) 549 U.S. ___, 126 S.Ct. 856 (Cunningham) and Blakelyv. Washington (2004) 542 U.S. 296 (Blakely).

The People concede that the count 11 false imprisonment charge and attendant enhancements must be stricken because Lopez was convicted of that lesser offense based on the same evidence supporting the greater offense of kidnapping in count 3. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1168; People v. Ratcliff (1981) 124 Cal.App.3d 808, 820.) The People also assert that our Supreme Court's recent decision in People v. Black (2007) 41 Cal.4th 799 (Black II), which held that "imposition of the upper term does not infringe upon a defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions" (id. at p. 816), is dispositive of Lopez's upper term claim because the trial court had relied on two legally sufficient aggravating factors in imposing that sentence, i.e., the fact Lopez was on probation for a prior conviction at the time of these offenses and the jury's finding that the kidnapping involved great bodily injury causing permanent paralysis.

In his reply brief, Lopez concedes that his Cunningham/Blakely argument is disposed of by Black II, supra, 41 Cal.4th 799, which we are required to follow (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456), and asks that we merely acknowledge his argument to preserve it for litigation in the federal courts. We do so and also concur with the People's concession that the count 11 conviction for false imprisonment and accompanying enhancements must be stricken. We therefore modify the judgment to strike that count 11 conviction and its enhancements and direct the trial court to amend the abstract of judgment accordingly. In all other respects, we affirm.

FACTUAL BACKGROUND

Lopez was arrested and charged with the instant crimes of violence occurring over the course of four days in October 2005 against his live-in girlfriend Ana G. after she confided to a nurse at the hospital where she was treated for a broken neck that Lopez had abused her. The following evidence was presented at trial.

The Prosecution Case

Ana had met Lopez in Mexico and had lived with him and her son there for about two years before she came to the United States and lived with Lopez here for approximately two more years before the incidents in this case. Their relationship had been violent almost from the beginning. After Ana moved in with Lopez in Mexico, he left for several days. When he returned, he accused her of being unfaithful with a male friend, ordered her into his car, and took her to a remote place near a canal where, after pulling her hair and hitting her on the breast and stomach, he pulled out a gun, pointed it at her head and threatened to throw her into the canal. Lopez then struck Ana on the back of the head with the gun and hit her in the mouth, chipping several teeth and cutting her lip, which left a scar.

Lopez had physically abused Ana at least eight other times while they lived in Mexico. In addition to hitting her in the nose and left eye, he had twisted Ana's nose causing it to deviate from its normal shape and causing her difficulty in breathing. Lopez also often kicked and hit Ana when he became angry, which was quite often, and sometimes even would choke her with his hands and cover her face with a pillow. Ana, however, continued to live with Lopez because he threatened to kill her if she left him.

Ana then came to the United States to join Lopez because he threatened to send someone to Mexico to hurt her or her family if she did not do so. While living here with him,^[3]he continued to be very jealous of her and hit her for "any little reason." He did not like her to wear makeup or tight fitting pants. Ana explained that Lopez would often hit her in the stomach, pull her hair and have sex with her. Afterwards, he would cry and tell her he felt miserable.

At the time of trial, Ana was paralyzed and confined to a wheel chair as the result of Lopez breaking her neck in a motel room in Vista, California, on October 24, 2005, after the culmination of a four-day ordeal which started in their home in Oceanside on October 20, 2005, Ana's 27th birthday. That morning, as Ana was getting ready to go to work at a florist shop in Vista, she received several phone calls from some girlfriends at work on her cell phone. Lopez became angry, accused her of cheating on him, and began taking off her clothes. When he noticed she was wearing thong underwear after telling

her not to wear that kind of underwear to work, his anger increased and he threw her on the bed, pulled her hair, ripped off her underwear, and forced her to have sex with him. Ana, who was taking medication for a vaginal infection at that time, told Lopez to leave her alone and that she did not want to have sex with him.^[4] When he saw a white discharge on her panties, he accused Ana of having sex with another man, continued pulling her hair, kissed her breasts and put his penis in her vagina "very violently." Afterwards, Lopez ordered Ana to get dressed, took her cell phone away, and told her that she was not going to work, but rather she was going with him somewhere in San Diego.

Before going to San Diego, they stopped at an apartment in Vista where they kept some of their belongings.^[5] They later returned to that apartment, where Lopez kept Ana for the next few days, not allowing her to go to work or outside. Ana was frightened because Lopez continued to insist that she was being unfaithful to him, accusing her of having two lovers at work and threatening to harm one of her family members or children if she left him.

Sometime after October 20, 2005, but before going to the motel, Lopez beat Ana, tried to suffocate and strangle her two or three times, and forced her to orally copulate him. She testified that all these events took place on the same day. First, while in the downstairs Vista apartment bedroom, Lopez covered her mouth with both of his hands and told her, "You fucking whore. You are not going to take advantage of me." Lopez, who was using drugs at the time, then forced Ana to ingest what she described as "crystal."

At some point Lopez took Ana to the upstairs living room to make him some food. After she did so, Lopez threw the food on the floor, grabbed Ana by the hair, hit her in the chest with a closed fist, and forced her to eat the food off the floor. He then tied her hands with a television cable that had been plugged in downstairs, forced her to swallow some beer and more drugs, and threatened to kill her. When Ana told him she was going to call the police, Lopez laughed at her, pushed her to the ground, placed his hands around her neck and squeezed so hard that she could not breathe, causing her to lose consciousness.

Almost immediately after strangling her with his hands, Lopez tied a white television cable around Ana's neck, threw her back on the ground and pulled the cable tightly around her neck, leaving ligature marks. As she again began to lose consciousness, Ana struggled and pleaded with Lopez to let her live for her children's sake. Even though he took the cable off, Lopez put his hands back on her neck and tried to strangle her again.

Although Ana could not remember the exact sequence of events, either before or after he strangled her and in the same place where he tried to strangle her with his hands and the television cable, Lopez forced Ana to have oral sex with him by putting his penis in her mouth. Ana said she complied in the sex act because Lopez hit her in the stomach, grabbed her by the hair and pulled her face toward him.

Ana also testified that between October 20 and 24, 2005, she saw Lopez with a gun, and at one point he held a knife to her back. Lopez told Ana they were leaving the apartment to go to a motel room because he was planning a way to kill her. He told Ana that she could leave, but if she did, he would see to it that her son would disappear. Although Ana did not want to go to the motel, she went there because she was afraid Lopez would harm her family if she tried to escape.

En route to the motel, Lopez stopped at a store to get food while Ana remained in his truck. She did not try to run away or escape because she believed Lopez would find her. She again stayed in the truck when Lopez got out to register at the motel. She reiterated that she went to the motel room with Lopez because she was afraid and also feared for the safety of her children and family.

At about 11:00 a.m. on October 24, 2005, as Ana got up from the edge of the bed next to Lopez in the motel room, after they had been arguing about her faithfulness,^[6]Lopez put both his hands on her head and bent her neck down to her chest. As he did so, Ana heard her neck pop and felt it crack, and immediately fell to the floor. When she could not move and her body started to swell, Ana pleaded with Lopez to help her. Instead of getting help, he responded, "Don't be an asshole. Get up." When she asked him to call an ambulance because she was starting to feel ill, Lopez grabbed and dragged her by the hair and then picked her up. Her body slipped from his grasp, and she again fell to the floor. Upset and mad, Lopez picked Ana up a second time, carried her to the bathroom, and put water on her back and head, telling her that it would make her feel better. He then carried her back into the bedroom and threw her on the bed. When Ana again asked Lopez to call an ambulance because her body hurt, he only responded that that's what she "got for acting like a whore."

Because her body continued swelling up and hurt, Ana then asked Lopez to unbutton her pants. Instead, he took them and her underwear off and kissed her vagina. Angry, because she did not want him to do that and only wanted help, Ana called Lopez a "damn dog." When he then kissed her mouth, she bit his lower lip and again asked him to call for an ambulance. Lopez refused, saying that the police would come and put him in jail. As he paced back and forth in the room, Ana suggested that he call one of her girlfriends for help, or, thinking she was going to die, at least let her call her children to say goodbye.

As Ana lay frightened and crying, Lopez continued to accuse her of being unfaithful and threatened to kill her and make her children disappear. At one point he told Ana everything was lost, that he was going to kill himself, and sat down on the carpet and put some clothes hangers around his neck and tried to twist them. Ana then told Lopez that she would tell the police that she had fallen and asked him to get her some food.

When Lopez left the room to get the food, he put the telephone on Ana's chest, telling her that she could call whomever she wanted, but also making another threat against her children if she did so. Although she tried to use the phone, she was unable to make a call because she could not move her arms or hands. Her screams for help while Lopez was gone, were unanswered.

After Lopez returned, he fed Ana and had her practice the story that she would tell the police. She offered to say that the injury was an accident so he would get help and allow her to talk to her children. Eventually, Lopez left the room and returned with the motel receptionist, who then called for help.

When paramedics responded to the motel room at about 3:30 p.m., on October 24, 2005, Lopez was present and Ana was laying on the bed. Although she told the paramedics she had fallen near a jacuzzi, there was no jacuzzi located on the motel premises and no evidence she had fallen in the bathroom. When the paramedics moved her to a board to carry her to the ambulance, they noticed that Ana was only wearing a t-shirt and was naked from the waist down.

Lopez visited Ana at the hospital and told her not to tell anyone that he had hit her. Ana, however, talked to a Spanish speaking nurse and told her what had actually happened to her, describing how Lopez had broken her neck. The police were then called to investigate.

Detective Pete Carrillo, who interviewed Ana at the hospital, recollected that she had told him the sex acts Lopez had forced upon her at the Vista apartment came before the strangulation. Carrillo's report of the interview, however, did not contain any mention of such forced sexual acts. On cross-examination, Carrillo conceded that Ana had told him during a subsequent interview that she had had "normal" sex with Lopez after he had strangled her, which she clarified was vaginal sex. Carrillo explained, however, that defense counsel was taking Ana's statement regarding "normal sex" out of context and that when her statements were taken as a whole, Ana had merely used such terminology to describe the type of sex she had said was not consensual.

When San Diego sheriff detectives later approached the Vista apartment where the couple had lived, which was stipulated to be 1.8 miles from the motel, Lopez fled and then surrendered upon reaching a dead end. At the time he was arrested, Lopez, who was six feet tall and weighed 200 pounds, had a knife locked open in his possession.

In a search of the Vista apartment, sheriff's deputies found pieces of white coaxial cable on the floor downstairs, on the stairs leading to the upper level, and on a chair in the dining room. Subsequent DNA testing on two pieces of the coaxial cable showed that the DNA on one cable had been contributed from two persons. Based on the profile samples of DNA taken from Ana and Lopez, they could not be excluded as donors of that DNA.

The orthopedic spine surgeon who evaluated, operated on and treated Ana for her spinal cord injury, testified that she suffered a three-column injury to her cervical spine. Only a significant force, equivalent to a fall from a significant height, or a car accident, could have caused this type of injury, and, if caused by human hands, it would have involved a very forceful act with significant flexion of the neck. The surgeon opined that the permanent spinal injuries sustained by Ana were not accidental. Ana is now a quadriplegic with her upper and lower extremities impaired such that she will never walk again and will need assistance with basic functions for the rest of her life.

The Defense Case

Lopez did not testify. Rather, he presented evidence via the testimony of several defense investigators who reenacted the sequence of events when he and Ana pulled up to the motel and he left her in the truck while he registered for their room. One investigator had taped the two other investigators as one left the truck to register for the room and the other ran from the truck to a nearby restaurant. The tape was played for the jury in an attempt to show that Ana had sufficient time to escape when she was left alone in the truck while Lopez registered at the motel.

The first deputy sheriff to interview Ana at the hospital also testified for the defense. Although Ana had discussed the events between October 19 through 24, 2005 with the deputy, describing how Lopez had imprisoned her in their homes before forcing her to go to the motel where he continued to keep her a prisoner, and how he threatened her and strangled her twice, Ana had not told the deputy about being sexually assaulted during that time. On cross-examination, the deputy conceded that he had not asked Ana any questions regarding forced sexual activity.

DISCUSSION

I

SUFFICIENT EVIDENCE OF COUNT 5 ENHANCEMENT

Because Lopez contends there was insufficient evidence to support the jury's true finding under section 667.61, subdivision (e) that he personally used a deadly weapon, to wit, a coaxial cable, in the commission of the count 5 forcible copulation, we view the facts adduced at trial in full and in the light most favorable to the true finding, drawing all inferences in support of such finding. (People v.Silva (1988) 45 Cal.3d 604, 625; People v. Johnson (1980) 26 Cal.3d 557, 576 (Johnson).) We resolve the issue based upon the entire record and determine whether there is substantial direct or circumstantial evidence of the existence of each element of the allegation found true. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusion. (People v. Arcega (1982) 32 Cal.3d 504, 518; Johnson, supra, 26 Cal.3d at p. 577; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)

In making our determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code,  312.) We simply consider whether " ' "any rational trier of fact could have found the essential elements of [the challenged allegation finding] beyond a reasonable doubt." ' [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the [jury's finding]," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

Here the record before the jury, viewed in accordance with these rules, showed that Lopez committed the forcible oral copulation alleged in count 5 on the same day and in the same place as he strangled Ana with his hands and with a white coaxial cable television cord. Although Ana could not remember the exact sequence of events, she remembered that Lopez had strangled her with the cable either before or just after forcing her to orally copulate him. Ana also said she completed the sex act because Lopez hit her in the stomach, grabbed her by the hair and pulled her face toward him. On cross-examination, she reiterated that she only orally copulated Lopez because he forced her to do so and she did not want him to hit her. The jury was later instructed that if it found Lopez guilty of the count 5 oral copulation, it then needed to determine whether he had personally used a deadly weapon "during the commission of [the oral copulation]." The prosecutor argued that with regard to such weapon use, it did not matter "if that [use] occurred before, during or after, as long as it was sometime during that sequence. It's the use of the weapon; it's the violence that allows this man to maintain control, over [Ana] to commit these crimes and receive submission. Again, the cable is a deadly weapon."^[7]

The jury found true that Lopez had personally used a deadly weapon, to wit a coaxial cable, when committing the oral copulation within the meaning of both sections 667.61, subdivision (e) and 12022.3, subdivision (a).

Lopez challenges the jury's findings, claiming there was no substantial evidence in the record from which the jury could find a nexus between the oral copulation and the weapon use, especially in light of Ana's statements that she only complied in the sexual act because she was afraid of Lopez hitting her. We disagree.

In People v. Jones (2001) 25 Cal.4th 98 (Jones), our Supreme Court, among other things, interpreted the phrase "in the commission of" as used in sections 12022.3, subdivision (a) and 667.61, subdivision (e)(4), and concluded "that [such] phrase . . . has the same meaning for the purposes of [those] sections . . . as it does under the felony-murder provisions. As the Court of Appeal herein explained, the 'commission' of a sexual offense specified in . . . section 12022.3, subdivision (a), does not end with the completion of the sex act, but continues as long as the assailant maintains control over the victim. [] Moreover, . . . the legislative intent to deter the use of firearms in the commission of specified felonies requires that 'use' be broadly construed. In the case of a weapons-use enhancement, such use may be deemed to occur 'in the commission of' the offense if it occurred before, during, or after the technical completion of the felonious sex act. The operative question is whether the sex offense posed a greater threat of harm‑‑i.e., was more culpable‑‑because the defendant used a deadly weapon to threaten or maintain control over his victim." (Jones, supra, 25 Cal.4th at pp. 109-110; original italics.) The defendant in Jones had forced the victim into his car, had raped and sodomized her as well as making her orally copulate him, and then when the victim reached for her clothing and started to get out of the car, the defendant had produced a knife that had been hidden in the car and held it to her face. The high court found the jury's finding that the defendant had personally used a deadly weapon during the commission of the sex crimes proper because the defendant had used the knife to threaten or maintain control over his victim. (Id. at p. 109.)

Lopez acknowledges the holding in Jones, but argues such does not apply in this case because unlike the defendant and victim in Jones, who were strangers, he and Ana had an ongoing intimate relationship, despite its violent nature. He asserts that even though the violence "certainly helps explain why Ana remained in the relationship," a closer causal or transactional nexus is required between the particular instance of weapon use and sexual assault than in Jones. He also argues that Ana's testimony shows she only committed the oral copulation because she was afraid that Lopez would hit her again if she did not engage in such act. The court in Jones, however, did not address subjective factors of expectations, motivations or relationships involving the victim or the perpetrator in defining the use of a deadly weapon "in the commission of" for purposes of determining the applicability of enhancements under sections 12022.3 and 667.61. Rather, the dispositive questions are whether the temporal relationship between Lopez's use of the cable to strangle Ana and his committing the forcible oral copulation was sufficiently close to justify an enhancement punishment and whether the sex offense posed a greater threat of harm because Lopez used the cable to threaten or maintain control over Ana. (Jones, supra, 25 Cal.4th at pp. 109-110.)

Here, it was undisputed that Lopez's use of the deadly weapon to attempt to strangle Ana occurred on the same day as he forced her to orally copulate him. Even though she could not recall whether the use of the cable cord to strangle her occurred before or after the forced oral copulation, she was certain that it was close in time and in the same upstairs living room area of the Vista apartment where Lopez had taken her to make him some food that day. Contrary to Lopez's assertions otherwise, these facts provided sufficient evidence from which a reasonable jury could infer a nexus between the strangulation with the coaxial cable and the forcible oral copulation under the holding and reasoning of Jones, supra, 25 Cal.4th 98. Regardless of the sequence of events that day, Lopez's acts against Ana in strangling her to unconsciousness with his bare hands, forcing her upstairs and then strangling her to unconsciousness again with the coaxial cable, as well as pulling her hair, hitting her in the face and stomach, and at some point forcing her to orally copulate him was a continuing transaction of violence from which the jury could find that Lopez had used a deadly weapon in the commission of the forced sexual act for the purpose of threatening and maintaining control over Ana, and which also increased the potential harm to Ana.

Lopez's assertions based on his narrow construction of the phrase "in the commission of" simply do not comport with the law set forth in Jones, supra, 25 Cal.4th 98 and are inconsistent with the legislative intent to increase punishment for a defendant's use of a weapon during the commission of a sex crime. Sufficient evidence supports the jury's weapon use findings attendant to count 5.

II

THE SENTENCE FOR THE COUNT 10 CRIMINAL THREAT

Lopez does not challenge the sufficiency of the evidence to support the jury's verdict on count 10 for a criminal threat, which could have been based on any one of five threats he had made to Ana between October 20 and 24, 2005, three of which he made to her after he had initially kidnapped her and was keeping her prisoner in the Vista apartment, and two that he had made after he tortured her at the motel by breaking her neck. Even though the jury was not given a special verdict to determine which of those threats the verdict was unanimously based upon, the trial court at the sentencing found that the criminal threat in count 10 was a separate crime, which warranted additional punishment. Lopez did not object to the court's reasons for imposing a separate, consecutive term on count 10 at that time.

On appeal, Lopez now contends that the trial court erred by imposing a consecutive eight-month term for his count 10 criminal threat conviction because its reasoning for doing so is not supported by the verdicts as "it is probable the jury relied on a threat which also formed the basis for the convictions of kidnapping or torture, because the threat was used either to effectuate one of those crimes, or in an attempt to avoid discovery." Lopez claims that because it is impossible to know whether the jury reached its guilty verdict on count 10 by relying on one of the threats which formed part of the continuous course of conduct of one of those other charges, the sentence on count 10 must be stayed under section 654 to prevent the possibility of prohibited multiple punishment for the same conduct. We disagree.

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), and ensures that " 'the defendant's punishment will be commensurate with his criminal liability.' " (People v. Norrell (1996) 13 Cal.4th 1, 6, quoting from Neal v. State of California (1960) 55 Cal.2d 11, 20.) " 'It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.' " (People v. Hicks (1993) 6 Cal.4th 784, 789, quoting from People v. Harrison (1989) 48 Cal.3d 321, 335.) If there were multiple objectives, punishment may be imposed for each crime even if the objectives were furthered by " 'common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Vidaurri (1980) 103 Cal.App.3d 450, 465.) Further, if the evidence discloses the defendant's acts were independent and divisible, then "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 (1979) 23 Cal.3d 545, 551, fn. omitted.)

Moreover, because the purpose of section 654's prohibition against multiple punishment is to ensure that punishment is commensurate with culpability (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252), courts have recognized that an offense committed to achieve another offense may "at some point . . . become so extreme [that it] can no longer be termed 'incidental' and must be considered to express a different and a more sinister goal than mere successful commission of the original crime." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191 (Nguyen), disapproved on other grounds in Ballard v. Estelle (9th Cir. 1991) 937 F.2d 453, 458, fn. 6; see also People v. Nubla (1999) 74 Cal.App.4th 719, 730-731 [multiple acts of violence against victim supports multiple punishment]; People v. Saffle (1992) 4 Cal.App.4th 434, 439-440 [sex offense followed by terror-inflicting false imprisonment warrants multiple punishment].)

Generally, the trial court has broad discretion in determining the factual issue of whether a defendant has multiple objectives for purposes of section 654, and on appeal we will uphold the court's express or implied finding that a defendant held multiple criminal objectives if it is supported by the evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730; People v. Beamon (1973) 8 Cal.3d 625, 636-639.)

In this case, the court by its sentence and reasoning for count 10, that it was based on "separate and distinctive conduct that was not alleged in any other count," impliedly found that Lopez had entertained different intents and objectives when he threatened Ana, which were separate from and not merely incidental to the commission of the kidnapping and torture offenses for which he was sentenced. Substantial evidence in the record supports such implied finding. Because the evidence showed that Lopez had made threats of violence to Ana which were not only "gratuitous," but went "far beyond [the conduct] reasonably necessary to accomplish the original offense [of kidnapping from their Oceanside home to their Vista apartment, i.e., threats to kill Ana and harm her family were made in the Vista apartment after the kidnapping was complete and Ana was being kept hostage there]" (Nguyen, supra, 204 Cal.App.3d at p. 191), as well as Lopez having gratuitously threatened to kill Ana or make her children vanish after he had tortured her by breaking her neck in the motel room, the record supports the court's imposition of a separate consecutive term for the count 10 threat conviction.

As the People point out in their respondent's brief, Lopez incorrectly assumes that all the threats that he made from October 20 through October 24, 2005 were made to facilitate committing the crimes of torture and kidnapping for which he was sentenced.^[8] In addition, even though Lopez's threat to Ana that he was planning a way to kill her before moving her a second time to the motel could arguably be construed as incidental to that movement for the kidnapping charge as Lopez argues, we believe the court would have been well within its discretion to find on the evidence in this case that such separate threat to Ana was not made merely for the commission of the original kidnapping but rather was made with "a more sinister goal" independent and gratuitous of that crime. (Nguyen, supra, 204 Cal.App.3d at p. 191.) Lopez's independent intent to be cruel to and instill sustained fear in Ana by threatening to kill her and then telling her she could leave but if she did so her son would disappear, evidences a separate objective from his original intent to move her against her will by force or fear and warrants additional punishment.

In sum, the circumstances shown by the evidence support the trial court's finding that Lopez entertained distinct multiple objectives when he made the threats to Ana that justify the imposition of the separate, consecutive term imposed in this case.

DISPOSITION

The judgment is modified to strike the count 11 conviction and its attendant enhancements. The trial court is directed to amend the abstract of judgment accordingly and to forward an amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] The jury acquitted Lopez of the alleged count 2 greater charge and enhancements of an oral copulation during the commission of a kidnapping with the infliction of great bodily injury.

^[3] Lopez had obtained documents for Ana in another name so that she would be able to work and give him the money she made.

^[4] The evidence suggested that Lopez had given Ana the vaginal infection. A week earlier, she had felt discomfort, itching and burning in her vagina, and Lopez had had a rash on his penis. Ana's treating physician told her that the infection was the kind that was transmitted by a third party.

^[5] Ana explained that Lopez had rented the apartment in Vista in addition to the room in a house in Oceanside because he had become paranoid after he started using drugs, believing that he was being watched. He also regularly took Ana with him to stay at a motel due to his paranoia.

^[6] Although Ana had denied being unfaithful to Lopez, he did not believe her, telling her that she was not "going to make fun of him." When Ana then stood up, saying that she had had enough and was going to leave him, Lopez had became infuriated.

^[7] Lopez's counsel did not counter the prosecutor's arguments regarding the count 5 enhancement allegations.

^[8] Although Lopez further suggests the threat in count 10 may also have been considered as part of the threats he had made while committing the count 7 assault with a deadly weapon, the counts 8 and 9 spousal abuse or the count 11 false imprisonment, the sentences for those counts were all stayed under section 654 and therefore would not create any prohibited multiple punishment.