P. v. Newman
Filed 5/2/13 P.
v. Newman CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
RONALD EVAN
NEWMAN,
Defendant and Appellant.
B239034
(Los Angeles County
Super. Ct. No.
MA052946)
APPEAL
from a judgment of the Superior Court of
County. Charles A.
Chung, Judge. Affirmed but sentence
modifications ordered.
Carla Castillo,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *
Ronald
Evan Newman (appellant) appeals from the judgment entered upon his convictions
by jury of assault by means likely to produce great bodily injury (Pen. Code, §
245, subd. (a)(1), count 2),
name="_ftnref1" title="">[1] burglary (§ 459, count 3),
two counts of making criminal threats
(§ 422, counts 4 and 5), and dissuading a
witness from reporting a crime (§ 136.1, subd. (b)(1), count 6). Prior to trial, count 1 was dismissed
pursuant to section 1382. The trial
court sentenced appellant to two years in state
prison, selecting the low term of two years for count 2. The court imposed concurrent terms of 16
months to two years on counts 3 through 6.
Appellant contends the trial court erred by (1) not staying his sentence
on count 3 under section 654 on the ground the burglary and assault were
incident to the same intent and objective; and (2) not staying his sentence on
count 5 under section 654 on the ground the criminal threat and witness dissuasion
involved the same victim and were incident to the same objective.
The
multiple victim exception to section 654 authorizes separate and concurrent
sentences for the burglary and assault.
We agree with appellant that the concurrent sentence for count 5 should
have been stayed. We modify the judgment
to correct the sentencing error and
affirm the judgment as modified.
FACTS
Prosecution Case
On May 27, 2011, appellant and
his fiancée, Michele Bowes, went to dinner at a local restaurant. During dinner, appellant talked about his
mother and his grandmother but was not making “sense†to Bowes. Bowes decided to leave the restaurant and
went outside. Appellant followed Bowes
outside and walked toward her car. Bowes
drove to her home in the City of Lancaster. She parked the car around the corner from her
home instead of her driveway because she wanted appellant to think she was not
home. Bowes entered her house and placed
a table in front of the front door. She
told her 14-year-old daughter K.B. to go into Bowes’s bedroom with her and she
then barricaded the bedroom door.
Bowes
and K.B. laid on the bed watching television.
Approximately 30 minutes later Bowes heard appellant unlock the front
door with his key. Appellant was unable
to get in and went to the back door to gain entrance. Bowes told K.B. to send a text to appellant
to tell him to go home. Appellant did
not return the text, so K.B. called and told him to leave or she would call the
police. Bowes heard footsteps coming up
the stairs. Appellant pushed the bedroom
door open and entered the room. He
jumped onto the bed, straddled Bowes around the hip area, and restrained her by
sitting on her. Bowes told appellant
“Get off me. I can’t breathe†after he
placed his hands on her neck.
K.B.
took her cell phone and went to another room from where she called the
police. K.B. went back into the bedroom
while talking to the 9-1-1
operator on the telephone. She told
appellant, “Get away from me,†“I’m on the phone with the cops right now,†and
“You better get off of her right now.â€
call the police†and she should get off the phone because “he could kill [Bowes
and K.B.] before the police would get here.â€
K.B. told the 9-1-1
operator that she had to get off the telephone, and hung up. Bowes kept a golf club, a hammer, a paring
knife, and pepper spray in her bedroom for her safety. K.B. struck appellant in the back with the
golf club.
Los
Angeles County Deputy Sheriffs Jeremy Esswein and Russell Deloof responded to
the 9-1-1
call. When the deputies entered the
bedroom they saw appellant lying on top of Bowes. Appellant had one arm around her throat
area. Bowes told appellant to stop
hurting her, and that she could not breathe.
Deputy Esswein ordered appellant to get off Bowes and let her go. Appellant refused. Deputy Deloof tased appellant in the lower
back when appellant continued to ignore Deputy Esswein’s orders to release
Bowes. Deputy Esswein was able to pull
Bowes out of the bedroom when appellant rolled off Bowes. Deputy Deloof observed redness on Bowes’s
neck, a mark on her arm, and an injury to her elbow. Another deputy photographed her injuries.
Defense Case
No evidence was presented on behalf of the defense.
DISCUSSSION
I. Appellant’s Sentence for Burglary Did
Not Violate Section 654
Appellant contends the trial court violated the rule against
multiple punishments when it sentenced him for both the burglary and the
assault on Bowes. He asserts the sole
objective of the burglary was to assault Bowes and he had already been punished
for the assault. The People assert the
sentence is proper because ‘“the limitations of section 654 do not apply to
crimes of violence against multiple victims.’â€
(People v. Oates (2004) 32
Cal.4th 1048, 1063; accord, People v.
Felix (2009) 172 Cal.App.4th 1618, 1630–1631 (Felix).)
We
review the trial court’s findings regarding the divisibility of a course of
criminal conduct under the substantial
evidence standard. (
730.) “The determination of whether
there was more than one objective is a factual determination, which will not be
reversed on appeal unless unsupported by the evidence presented at trial.†(People
v. Saffle (1992) 4 Cal.App.4th 434, 438.)
Section
654 prohibits separate punishment for multiple offenses arising from the same
act or from a series of acts constituting an indivisible course of criminal
conduct. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.)
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.’†(
“‘a means toward the objective of the commission of the other,’†section 654
prohibits separate punishments for the two offenses. (People
v. Britt (2004) 32 Cal.4th 944, 953.)
Here, the burglary of Bowes’s residence was the means of perpetrating
the assault on her, and the criminal acts were indivisible and incident to
appellant’s single objective of attacking Bowes.
Ordinarily,
section 654 would have barred punishment for both the burglary of Bowes’s
residence and the assault on Bowes but we find the
multiple victims exception applies here because Bowes’s
14-year-old daughter, K.B., was
also present during the burglary even though she was not identified as a victim
in the information or in the verdict.
Burglary “‘standing alone, is not a
violent crime for purposes of [applying] the multiple victim exception.’†(People
v. Hall (2000) 83 Cal.App.4th 1084, 1090, quoting People v. Centers (1999) 73 Cal.App.4th 84, 99 (
a crime of violence under the multiple victim exception to section 654, if the
defendant “‘inflicted great bodily injury in the commission of the
burglary.’†(People v. Le (2006) 136 Cal.App.4th 925, 932, quoting
means likely to produce great bodily injury within the meaning of section 245,
subdivision (a)(1), appellant “‘inflicted great bodily injury in the commission
of the burglary’†and therefore the burglary of Bowes’s residence was a violent
offense for purposes of the multiple victim exception.
Although the information specified
only Bowes as a victim of the crime of burglary, the manner in which a charge
is pled in the information does not control the multiple victim exception to
section 654. The importance of
identifying a victim in the information, for purposes of the multiple victim
exception to section 654, has been addressed in Centers, supra, 73 Cal.App.4th at page 101. In Centers,
which was primarily a kidnapping case, one of three occupants of a residence
was a victim of both a burglary and a kidnapping. The appellate court addressed whether the
multiple victim exception to section 654 allowed a separate sentence for
burglary even if the information did not name the victims of the burglary. (Centers,
supra, at p. 99.) In concluding the
defendant could be sentenced for both the burglary and the kidnapping, the
court reasoned the multiple victim exception applied, regardless of whether the
identities of those victims had been pleaded, because there was substantial
evidence that at least one other occupant was not also a victim of the
kidnapping. (Id. at pp. 101–102.)
As in Centers,
the trial court’s implied finding in this case of multiple
victims is supported by substantial evidence.
Although K.B. was not a named victim of the burglary, she constituted a
separate victim of this violent offense.
She lived in the residence and was in close proximity to appellant’s
violent attack on her mother. Thus, the
multiple victim exception to section 654 was triggered as there was one victim
of the burglary, K.B., who was not also identified as a victim of the assault by means likely to produce great bodily injury.
Appellant
concedes that the multiple victim exception to section 654 applies when a
defendant inflicts great bodily injury but argues that there was no infliction
of great bodily injury during the commission of the burglary. That is contrary to the evidence presented
and the jury’s findings. The evidence
showed that appellant choked Bowes to the point where she complained that she
could not breathe. The jury was
instructed on the lesser included offense of simple assault (§ 240) but
returned a verdict of guilty of assault by means likely
to produce great bodily injury (§ 245, subd. (a)(1)).
The multiple victim exception
applies “as long as each violent offense involves at least one different
victim.†(Felix, supra, 172
Cal.App.4th at p. 1631.) Here, each offense involved at least one
separate victim because Bowes was a victim of the assault and K.B. was a victim
of the burglary.
II. Separate
Sentences for Making a Criminal Threat and Dissuading a Witness Violated
Section 654
The jury
convicted appellant of making a
criminal threat under section 422 in count 5, and dissuading K.B. from
reporting a crime to law enforcement under section 136.1, subdivision
(b)(1) in count 6. He contends his
sentence on count 5 was unauthorized because “both counts involved the same
act, the same victim and the same objective—to scare K.B. so she would hang up
the phone.†The People argue section 654
was inapplicable because appellant’s course of conduct can be broken down into
separate incidents with separate objectives.
A
criminal threat requires proof that, among other elements, the defendant
intended the subject statement to be taken as a threat and the statement caused
the victim reasonably to be in sustained fear for her own safety or the safety
of her immediate family. (§ 422;
227–228.) Felony dissuading a witness
has different elements and requires a different intent. “Section 136.1 criminalizes trying to
dissuade a victim from reporting a crime.â€
(People v. Upsher (2007) 155
Cal.App.4th 1311, 1320.) Conviction of
that felony offense requires the jury to find the defendant knowingly and
maliciously tried to prevent or discourage a crime victim from making a report
of that victimization to law enforcement.
(§ 136.1; see People v.
Factually, the record indicates that all of the offenses occurred at the
same location, and as part of the same confrontation. The witness dissuasion and criminal threat
charges against appellant were incident to a single objective and were part of
an indivisible transaction. Case
law establishes that even when two offenses were committed by separate acts,
section 654 precludes separate punishment when the sole purpose for committing
one offense was to facilitate commission of the other. (See, e.g., People v. Latimer (1993) 5 Cal.4th 1203, 1216 [objective behind
kidnapping was to facilitate rape].)
The People characterize the incident in the bedroom as
having separate distinct acts and argue in addition to the objective of
dissuading K.B. from reporting the crimes, the trial court
could have found that appellant had a separate objective to kill K.B. when she
was on the telephone with the 9-1-1 operator.
But the trial court’s implied
finding that the threats created a new risk of harm and were independent of the
attempts to dissuade K.B. from reporting the crimes is not supported by the
evidence. (People v. Felix (2001) 92 Cal.App.4th 905, 915.)
The testimony of the victims and the transcript of the
9-1-1 call describing the circumstances of the threats supported the fact that
appellant harbored a single intent—to get K.B. to hang up the telephone. K.B. testified that she went to the den and
called the police when appellant forced his way into the bedroom. She returned to the bedroom and was talking
to the 9-1-1 operator when appellant told her to get off the telephone because
there was “no need to call the police†as he could kill both her and Bowes
before the police would get there. The
prosecutor asked K.B. how many times appellant made that statement. K.B. responded, “I don’t remember. Maybe twice.â€
On the 9-1-1 tape, K.B. told the operator “He’s telling me to get off
the phone,†and “He said that if (unintelligible) don’t get off the phone he’s
gonna kill her.†Bowes testified that
appellant told K.B. to “Hang up the phone.
I could kill you guys by the time they get here.â€
Appellant did not threaten K.B. when he entered the
bedroom prior to assaulting Bowes, nor did he threaten her subsequent to his
arrest. His criminal threats to harm
K.B. were inextricably linked to the fact that she was on the telephone and
appellant was aware that she was talking to the police. Substantial evidence does not support a
finding that appellant had a separate objective to kill K.B.
The People alternatively contend that appellant’s acts
were divisible in time and appellant had an opportunity to reflect and renew
his intent before committing the separate crimes. However, intent, rather than the temporal
proximity of the offenses, determines whether the transaction is
indivisible. (People v. Harrison (1989) 48 Cal.3d 321, 335.) We reject the People’s argument that a nine
second pause on the 9-1-1 call was a sufficient separation in time. People
v. Guzman (1996) 45 Cal.App.4th 1023, illustrates that section 654 applies
even where crimes are committed in different locations and after a lapse of
time. There, the defendant committed
burglary by stealing a motorcycle from the victim’s garage and loading it into
a truck. The victim gave chase and
cornered the defendant, who then exited the truck. The defendant committed a robbery when he
beat the victim and drove away with the motorcycle. Division Seven of this district concluded
that the burglary was still in progress when the defendant committed the
robbery. The court found that both
offenses were committed pursuant to one objective, and there was but a single
continuous course of conduct. (
We
conclude that the state of the evidence supports the conclusion that
appellant’s actions in criminally threatening K.B. and dissuading her from
reporting the crimes to the police constituted one continuous course of conduct
in pursuit of one objective.
DISPOSITION
The judgment is ordered modified to
reflect that the 16-month concurrent term for the criminal threat (§ 422)
conviction on count 5, is stayed pursuant to section 654. As so modified, the judgment is
affirmed. The trial court
is ordered to send a certified copy of the corrected abstract of judgment to
the Department of Corrections and
Rehabilitation.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
FERNS
We concur:
____________________________,
Acting P. J.
ASHMANN-GERST
____________________________,
J.
CHAVEZ
unless otherwise indicated.
containing these statements was admitted into evidence (People’s exhs. 7 &
8).
