P. v. McClain

 

 

 

 

 

 

 

 

 

Filed 8/26/13  P. v. McClain CA4/3

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,                            v.   ROBERT AVERY McCLAIN,         Defendant and Appellant.

G047168            (Super. Ct. No. 08HF1870)            O P I N I O N

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Gary S. Paer, Judge. 
Affirmed.

                        Eric R. Larson, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, A. Natasha Cortina and Christine
Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

 

*               
*                *

 

                        A
jury found defendant Robert Avery McClain guilty of aggravated mayhem (Pen.
Code, § 205; all further statutory references are to this code; count 1);
torture (§ 206; count 2), forcible oral copulation (§ 288a; count 3); attempted
sexual penetration by a foreign object by force (§§ 289, subd. (a)(1), 664;
count 4); spousal rape by force (§ 262, subd. (a)(1); count 5); sodomy by force
(§ 286, subd. (c)(2); count 6); false imprisonment as a lesser included offense
of kidnapping to commit a sex offense (§ 236; count 7); and inflicting injury
on a spouse resulting in traumatic injury (§ 273.5, subd. (a); count 8).  It also found true allegations he personally
used a knife and firearm in committing count 1, a knife in committing count 2,
a firearm in committing counts 3, 4, 5, and 6, and that in committing count 8,
he personally inflicted great bodily injury.

                        The court sentenced
defendant to two consecutive indeterminate life terms, two consecutive 15 years
to life terms, plus an additional 19 years and 8 months.  He contends his sentences for aggravated
mayhem and false imprisonment should have been stayed under section 654.  We conclude no error occurred and affirm the
judgment.

 

FACTS

 

                        In September 2008,
defendant’s wife (wife) told him she wanted a divorce.  Defendant, a sheriff’s deputy, asked if she
was seeing another man and she eventually admitted she was.  At defendant’s request, wife took him to meet
her lover, Michael, around 10 p.m. 

                        When Michael opened the
door, defendant escorted him outside and led him and wife to the leasing office
where wife worked and made her open the door. 
Once inside, defendant confronted Michael, asking “‘How many times did
you sleep with my wife?’”

 

                        Michael took one step
toward the door before defendant punched him in the face so hard that his head
hit the ground and he appeared unconscious. 
Defendant got on top of Michael and repeatedly punched him in the head,
causing Michael’s body to convulse.  When
wife attempted to stop defendant, he punched and kicked her.  Defendant then returned to punching and
kicking Michael, who remained unconscious and did not move, saying, “‘You are
fucking my wife,’” and “‘Get up.  Get
up.’”

                        Wife tried to call for
help but defendant threw her on the ground and ripped the phone out of the
wall.  When she tried to grab her cell
phone out of her pocket, defendant grabbed it and beat her some more.  Michael was still unconscious.  At times he would appear to regain
consciousness and try to get up but defendant punched and kicked him until he
passed out again.

                        After beating Michael
for about 15 to 20 minutes, defendant noticed a tattoo on Michael’s arm and
pulled out two guns and a knife from his pockets.  Stating he was going to kill Michael,
defendant started beating him on the head with one of the guns.  Defendant then took the knife and sliced
Michael’s arm where the tattoo was, as well as his face, causing blood to gush
and Michael to moan. 

                        When wife attempted to
stop defendant, he punched her and sliced her face.  She reminded him of their four children and
his job as a police officer, but defendant replied, “‘It’s over.  I am going to serve at least 15 years for
this.’”  Defendant removed Michael’s
shirts and pants, slashed his chest and inner thighs, and plunged his knife
into the groin area, causing blood to appear through Michael’s underwear.  Defendant thereafter took off Michael’s
underwear, slashed his penis with the knife while continuing to punch him, then
flipped him over and dug the knife into Michael’s anus.  When Michael screamed, defendant stuffed his
underwear into his mouth.

                        After forcing wife to
orally copulate both himself and Michael, defendant placed the knife in her
vagina and began cutting her, stating, “‘If I go away for 15 years, nobody else
is going to have you.’”  When Michael started
groaning, defendant moved towards him and wife ran for the door.  She was able to open it and scream before
defendant pulled her back inside.

                        Upon dragging wife back
into the leasing office, defendant urinated on both her and Michael before
slicing Michael’s face with the knife and placing a gun in his mouth to prop
his head up.  Defendant gave the gun to
wife, telling her there was only one bullet inside and to shoot either him or
Michael.  Wife aimed between them and
pulled the trigger three times, but there was only a clicking sound.  She then pointed the gun at defendant and
pulled the trigger but again the gun did not go off.  Enraged, defendant grabbed the gun and hit
wife with the butt of the gun. 

                        Defendant went back to
Michael and punched him until he fell down, whereupon he grabbed Michael around
the neck, strangling him and hitting his head against the ground.  Handing the knife to wife, defendant told her
to cut off Michael’s penis, but she told him the knife was too dull so he
forced her at gunpoint to stab Michael in the penis, although she tried to only
graze him. 

                        Defendant eventually
agreed to leave but had wife tie up Michael. 
Before leaving, defendant told wife he would kill Michael if she tried
to run or scream.  He led her to the car
and had her sit in the passenger seat, instructing her not to try to get
out.  Defendant started to drive to their
home but changed his mind and drove in the opposite direction.  He said wife made him do this and that he
thought he had killed Michael.

                        Ultimately, he drove to
a secluded residential area, put the barrel of the gun to her temple and
threatened to kill her.  He used the
knife to cut off her hair and slice her face, stating, “‘You think you are so
pretty.  Nobody is going to think you are
pretty after this.’”  After telling her
to take off her pants and saying, “‘I’m going to jail for a long time and I’m
going to have sex with you before I do,’” defendant sodomized and vaginally
raped wife.  When defendant finished,
wife jumped into the back seat and opened the car door but he grabbed her hand;
wife vomited outside the car. 

                        Defendant began driving
toward their Irvine apartment.  Upon
arriving home, he forced wife take a shower and write a letter stating she
cheated on him.  He choked her, calling
her a whore and a bitch and stating she was selfish and that everything was her
fault.  Defendant called wife’s sister
and told her wife had cheated on him. 
Wife screamed “‘help’” and ran out the front door but defendant caught
her and knocked her out. 

                        Wife woke up on the
couch of their apartment.  When defendant
fell asleep, she woke the children and tried to leave the apartment but an
alarm beeped, waking defendant up.  Although
he ordered everyone back inside, wife sent the children, who were crying
because of her appearance, to the car. 
Defendant allowed them to drive away, but asked wife to promise she
would bring them to visit him in prison because he was “‘go[ing] away for a
long time.’” 

                        Wife drove to the
emergency room.  The next morning, police
found Michael standing in the break room, naked and unresponsive and had him
transported to the hospital.  Defendant
was arrested.

 

DISCUSSION

 

>1. 
Introduction and Relevant Legal Principles

                        Defendant contends his
concurrently imposed sentences on counts 1 (torture) and 7 (false imprisonment)
should have been stayed under section 654. 


                        “‘Section 654 precludes
multiple punishments for a single act or indivisible course of conduct.”’  (People
v. Galvez (2011) 195 Cal.App.4th 1253, 126 (Galvez).  When it applies,
“the accepted ‘procedure is to sentence defendant for each count and stay
execution of sentence on certain of the convictions to which section 654 is
applicable.’”  (People v. Jones (2012) 54 Cal.4th 350, 353.)  “‘Whether a course of criminal conduct is
divisible and therefore gives rise to more than one act within the meaning of
section 654 depends on the intent and objective of the actor.  If all of 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. Correa (2012) 54 Cal.4th 331,
336.)  “[A] course of conduct divisible
in time, though directed to one objective, may give rise to multiple
convictions and multiple punishment ‘where the offenses are temporally
separated in such a way as to afford the defendant opportunity to reflect and
renew his or her intent before committing the next
one . . . .’”  (>People v. Lopez (2011) 198 Cal.App.4th
698, 717-718.) 
“‘If . . .  defendant harbored “multiple criminal objectives,”
which were independent of and not merely incidental to each other, he may be
punished for each statutory violation committed in pursuit of each objective, “>even though the violations shared common
acts or were parts of an otherwise indivisible course of conduct.”’”  (Galvez,
at pp. 1262-1263, italics added.)  “A
trial court’s [express or] implied finding that a defendant harbored a separate
intent and objective for each offense will be upheld on appeal if it is
supported by substantial evidence.”  (>People v. Blake (1998) 68 Cal.App.4th
509, 512.)

 

>2. 
Aggravated Mayhem

                        Defendant’s sentence
included two consecutive life terms for his convictions on counts 1 (aggravated
mayhem) and 2 (torture).  He contends his
sentence for aggravated mayhem must be stayed because the acts upon which it
was premised, i.e., cutting Michael’s face and penis with the knife, were
encompassed within the acts constituting the torture charge, which was based on
everything defendant did to Michael in the leasing office and both offenses
“were committed with the same intent and objective of inflicting pain and
damage upon Michael.”  We disagree.

                        Aggravated mayhem
requires the prosecution to prove the defendant intended to permanently disable
or disfigure the victim.  (See >People v. Quintero (2006) 135
Cal.App.4th 1152, 1162 [“Aggravated mayhem is a specific intent crime which
requires proof the defendant specifically intended to cause the maiming injury,
i.e., the permanent disability or disfigurement”].)  Torture on the other hand requires “‘specific
intent to cause cruel or extreme pain and suffering for revenge, extortion or
persuasion or any sadistic purpose.’”  (>People v. Burton (2006) 143 Cal.App.4th
447, 451-452.) 

                        In determining section
654 did not bar sentencing on both aggravated mayhem and torture, the court
found persuasive the prosecutor’s argument defendant “formed the separate
intent and objective for each offense.” 
For mayhem, the prosecutor argued, and the court agreed, that defendant
slashed Michael’s face and genitalia with the intent to permanently disfigure
him “because he knew Michael was the object of [wife’s] desire.”  That this was defendant’s intent is supported
by the fact that while he was slicing Michael’s face, defendant asked, “‘You
like fucking my wife, Michael?’” 
Additionally, just before stabbing Michael’s groin area, defendant said
to wife, “‘Look at this white boy.  You
are cheating on me with this?  This is
what you are leaving me for?’”  Then
while he continued slashing Michael’s penis, defendant queried, “‘This is
pathetic.  Look how small he is.  And you are leaving me for this[?]’”

                        By contrast, in addition
to finding “defendant had the time to reflect and consider his actions,” the
court endorsed the prosecutor’s claim that defendant’s intent in committing
torture for revenge was “to emotionally and physically damage Michael in the
three-hour ordeal in side the leasing office.” 
As stated by the court, defendant did this “by punching him about the
face and body, kicking him, stomping on his chest, placing a gun to his head,
threatening to kill him, shoving a knife inside his rectum, stripping him of
his clothes, placing the barrel of the gun into his mouth, yelling and
screaming at Michael, binding him with a strap, urinating on him, forcing
[wife] to orally copulate him, and leaving Michael bleeding for nearly six
hours after the beating.”  The record
confirms these acts occurred, which, as the court found, “go well beyond the
slashing of Michael’s face and groin.” 
Given that the prosecutor made these arguments in the trial court,
defendant’s claim this was not how the case was tried lacks merit. 

                        The evidence also
substantiates the court’s determination defendant had time between offenses to
reflect and consider his actions.  In >People v. Trotter (1992) 7 Cal.App.4th
363 (Trotter), the defendant was
convicted of three counts of assault for firing three shots at a police officer
who was following him in a freeway chase. 
The first two shots were about a minute apart, and the third shot came a
few seconds later.  The defendant argued
that all three shots could not be punished separately under section 654 because
they “manifested the same intent and criminal objective.”  (Trotter,
at p. 367.)  Trotter rejected the argument, stating that “this was not a case
where only one volitional act gave rise to multiple offenses.  Each shot required a separate trigger
pull.  All three assaults were volitional
and calculated, and were separated by periods of time during which reflection
was possible.  None was spontaneous or
uncontrollable.  ‘[D]efendant
should . . . not be rewarded where, instead of taking
advantage of an opportunity to walk away from the victim, he voluntarily
resumed his . . . assaultive behavior.’”  (Id.
at p. 368.) 

                        Similarly, here,
defendant punched and kicked Michael for 15 to 20 minutes before pausing when
he noticed the tattoo on Michael’s arm. 
At that point, he took out his knife, along with his guns, and began
slicing Michael’s arm, face, and subsequently stabbing him in the groin.  Defendant then changed gears and had wife
orally copulate himself and Michael before placing the knife in her vagina,
stating, “‘If I go away for 15 years, nobody else is going to have you.’”  Only after that did defendant resume the acts
the court found constituted the torturing of Michael.  As in Trotter,
defendant’s commission of the acts constituting aggravated mayhem and torture
were separated by periods during which he had time to reflect on his actions.

                        Because substantial
evidence supports the court’s finding defendant had two distinct criminal
objectives, which were independent of and not merely incidental to each other,
section 654 does not prohibit separate punishments for the href="http://www.fearnotlaw.com/">aggravated mayhem and torture.  (See People
v. Assad (2010) 189 Cal.App.4th 187, 200 [torture and aggravated mayhem
against same victim but based on different acts not part of same course of
conduct].)  Defendant distinguishes >Assad on the basis it involved “multiple different incidents occurring on multiple
different days . . . .” 
That may be, but as Trotter demonstrates,
a defendant may be independently punished for crimes “separated by periods of
time during which reflection was possible” (Trotter,
supra, 7 Cal.App.4th 368),
notwithstanding their commission on the same day, within a short time period,
and the sharing of common acts.  (>People v. Galvez, supra, 195
Cal.App.4th at p. 1263.)  The court found
that to be the case and we will not reweigh the evidence. 

 

>3.  Felony
False Imprisonment

                        Although defendant was
charged in count 7 with kidnapping to commit spousal rape, the jury found him
not guilty of that charge and the lesser included offense of simple kidnapping,
but guilty of the lesser included offense of felony false imprisonment.  The court sentenced defendant to 15 years to
life on count 5 (spousal rape) and 8 months for count 7 (false
imprisonment).  In sentencing defendant
for the false imprisonment, the court explained it was a separate crime from
domestic battery, which occurred when wife “was prevented from leaving the car”
or arguably when “she was prevented from leaving the leasing office.”

                        Defendant contends the
sentence on count 7 should have been stayed under section 654 because it “was
necessarily incidental to [his] sentence for spousal rape in [c]ount [5].”  Defendant cites the prosecutor’s argument
that count 7 was based on his acts of forcibly moving wife from the leasing
office, driving her in his car for a substantial distance without her consent,
and then pulling the car over and raping her. 
Defendant reasons that, since the jury rejected the kidnapping to commit
spousal rape and simple kidnapping charges, both of which require nonconsensual
movement, the guilty verdict on count 7 “demonstrates that the jury found [him]
guilty of the lesser included offense of felony false imprisonment by forcibly
detaining her inside the car while he raped her on the side of the road.”  We also note the prosecutor’s argument in its
sentencing brief with regard to count 7 that wife “was prevented from leaving
or escaping their car during the drive from the leasing office to the city of
Corona and back to their apartment in Irvine.” 


                        Even so, defendant’s
argument ignores the court’s finding the false imprisonment arguably occurred
when defendant prevented wife from leaving the leasing office.  When wife attempted to flee from the leasing
office, defendant grabbed her arm to pull her inside and wrapped his arm around
her neck, dragging her back to the leasing office and threatening to kill her
if she tried to leave.  Before they left
the leasing office, defendant stated he would “blow Michael’s head off” if she
tried to run or scream.  Defendant then
led wife to the car, holding her arm and, after placing her in the passenger’s
set, told her not to try to get out. 
After driving to a secluded area, defendant raped wife, stating, “‘I’m
going to jail for a long time and I’m going to have sex with you before I do.’”  These facts support the court’s implicit
finding defendant harbored two separate intents and objectives:  falsely imprisoning wife to prevent her from
running away and getting help, and forcibly raping her in the car because it
was going to be a long time before he had sex again.  (See People
v. Saffle (1992) 4 Cal.App.4th 434, 438-440.)  They also sustain an implied finding the
false imprisonment was not incidental to the spousal rape, which was separated
by a time period allowing for reflection after the false imprisonment in the
leasing office.  (See >People v. Surdi (1995) 35 Cal.App.4th
685, 689 [section 654 inapplicable where crimes “did not arise from a single
volitional act [but] . . . were separated by considerable
periods of time during which reflection was possible”]; People v. Trotter, supra,
7 Cal.App.4th at p. 368 [same].)

                        Defendant asserts the
court’s finding the false imprisonment could have been based on his detention
of wife in the leasing office was “flawed” because he was not charged with that
in count 7 but “with kidnapping for spousal rape based on wife’s transportation
in the vehicle, and the jury found [him] to only have committed the lesser
included offense of felony false imprisonment based on that conduct.”  But the “application of section 654 does not
depend on the allegations of the
charging instrument, but on what was proven
at trial.”  (People v. Assad, supra,
189 Cal.App.4th at p. 200.) 
Additionally, absent “some circumstance ‘foreclosing’ its sentencing
discretion . . . a trial court may base its decision under
section 654 on any of the facts that
are in evidence at trial, without regard to the
verdicts. . . .  After all, a court may even rely on
facts underlying verdicts of acquittal in
making sentencing choices.”  (>People v. McCoy (2012) 208 Cal.App.4th
1333, 1340.) 

                        Even if the trial court
was required to accept and rely upon the same theory asserted by the
prosecution (see People v. Coelho (2001)
89 Cal.App.4th 861, 876; see also People
v. Jones (2012) 54 Cal.4th 350, 359 [concluding Court of Appeal properly
refused to rely on an argument not previously argued]), the prosecutor’s
closing argument raised the possibility of false imprisonment premised on the
events in the leasing office.  The
prosecutor discussed defendant’s actions after he and wife left the leasing
office in the context of the element of movement necessary to establish the
offense of kidnapping to commit spousal rape. 
In doing so, the prosecutor noted that prior to being taken to the car
wife had been beaten in the office for nearly three hours and warned, “‘If you
run, I’ll kill you.  If you scream, I’ll
blow Michael’s head off.’”  This, along
with the evidence, was sufficient to place the issue of false imprisonment in
the leasing office before the jury.

                        Moreover, even if we
limit our review to the prosecutor’s arguments to the jury and in his href="http://www.mcmillanlaw.com/">sentencing brief, the court’s implied
finding of separate intents and objectives was still supported by substantial
evidence.  In People v. Foster (1988) 201 Cal.App.3d 20 (Foster), the defendants were convicted of robbery and false
imprisonment and sentenced to consecutive terms for those offenses.  Foster
rejected the claim section 654 barred separate punishment on false
imprisonment, concluding “[t]he imprisonment of the victims occurred >after the robbers had obtained all of
the money, and therefore was not necessary or incidental to committing the
robbery.”  (Foster, at p. 27.)  It added
that the false imprisonment was “analogous to a needless or vicious assault
committed after a robbery . . . .”  (Ibid.)

                        Similarly, here, the
evidence shows that after raping wife, defendant prevented her from leaving the
car.  His false imprisonment of her was
not merely incidental to the spousal rape but continued after defendant had
finished raping her.  Based on this
evidence, the court could have reasonably concluded defendant continued to
detain wife after the rape in order to prevent her from reporting his crimes.  Because the evidence is sufficient to sustain
a finding defendant falsely imprisoned wife pursuant to an objective that was
independent of the spousal rape, separate punishment was not proscribed by
section 654. 

 

DISPOSITION

 

                        The judgment is
affirmed.

 

 

 

                                                                                   

                                                                                    RYLAARSDAM,
J.

 

WE CONCUR:

 

 

 

O’LEARY, P.
J.

 

 

 

IKOLA, J.