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P. v. Parnell

P. v. Parnell
01:06:2010



P. v. Parnell







Filed 12/30/09 P. v. Parnell CA2/1









NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



THE PEOPLE,



Plaintiff and Respondent,



v.



RICKY PARNELL,



Defendant and Appellant.



B210530



(Los Angeles County



Super. Ct. No. NA077295)



APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed in part, reversed in part with directions.



Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.



Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.




In June 2008, a jury found appellant Ricky Parnell (Parnell) guilty of four counts of assault with a deadly weapon (Pen. Code,[1] 245, subd. (a)(1); counts 14), one count of corporal injury to a spouse or coinhabitant ( 273.5, subd. (a); count 5), one count of false imprisonment by violence ( 236; count 6), and one count of torture ( 206; count 7), all against the same victim, Eleather Shidie (Shidie). It was further alleged as to all seven counts that: (1) Parnell personally inflicted great bodily injury ( 12022.7, subd. (e)); (2) Parnell had one prior prison term ( 667.5, subd. (b)); (3) Parnell had one prior serious felony conviction ( 667, subd. (a)(1)); and (4) Parnell had one prior strike conviction ( 1170.12, subds. (a)(d), and 667, subds. (b)(i)).



The trial court sentenced Parnell to state prison for the term of life with the possibility of parole (with a minimum of 14 years) on count seven (torture) plus five years pursuant to section 12022.7, subdivision (e), five years pursuant to section 667, subdivision (a)(1), and one year pursuant to section 667.5, subdivision (b). A sentence of 11 years and four months on the remaining counts (two years on each of counts 15[2]and sixteen months on count 6) was ordered to run consecutive to the sentence in count one.[3]



In this appeal, Parnell contends: (1) the trial court committed prejudicial error in admitting evidence of a 1989 incident of domestic violence; and (2) the trial court erred in ordering the sentences on counts 1 through 6 to run consecutively to the term imposed on count seven rather than staying the first six sentences pursuant to section 654. Respondent maintains the abstract of judgment must be corrected to properly reflect the sentence imposed on count five. As there was no substantial evidence that Parnell entertained multiple independent criminal objectives on each of counts 1 through 6, we conclude the sentences should have been stayed under section 654. We order the sentences on counts 1 through 6 stayed and the abstract of judgment corrected and otherwise affirm the judgment.



BACKGROUND



The testimony at trial established the following:



Parnell and victim Shidie met about 10 years before the offenses at issue occurred, back when both were homeless and drug users. They had a sexual relationship for about nine months, and in November 2007, Shidie moved in with Parnell and his four-year-old son in their Long Beach apartment. Shidie had Parnells first name tattooed on the back of her neck.



Shidie and Parnell argued on occasion. Parnell struck her once before, but Shidie did not call the police. At some point, she had been pregnant with Parnells child and miscarried due to the stress caused by his beating her. He had beaten her with his fists, giving her a black eye.



Four days before the offenses in this case, Shidie was raped by four men. She went home after the assault, and Parnell comforted her. She did not report the rapes to the police.



On January 31, 2008, Shidie went to St. Francis Hospital to be treated for a sexually transmitted disease (STD), complaining of a vaginal discharge and abdominal pain.[4] Parnell was with her. Physicians Assistant Charles Worley (Worley) examined her. He found no cuts or lacerations to her face or cuts or bruises to her legs or back. He performed an external kidney examination; Shidie exhibited no indication of kidney or back injury.



She was discharged from the hospital the same evening. When she returned home, Shidie had some cocaine; Parnell had some marijuana.[5]



On February 1, 2008, everything seemed normal at first. Shidie testified that she got up[,] . . . cooked breakfast, everything was fine. Shidie had her coffee and a cigarette.



Parnell left the bedroom and returned with a whole different attitude change. He told her to go to the kitchen and do the fucking dishes. Shidie said: I will as soon as I have my coffee and my cigarette. Parnell walked out and back into the room and said: Get up now and go clean the fucking dishes. He seemed angry and pushed her in the face with his open hand. Shidie told him Im not taking this shit no more, take me home to my mom. Parnell replied: Thats not a fucking hit, if you want a fucking hit I can show you a fucking hit. Parnell then pushed her in the face again. Shidie repeated that she wanted him to take her to her mothers.



Parnell just started pounding on Shidie, in the face, then on her head. He used both an open hand and his fist. Shidie testified that he punched her on the left side of her head, on her back, and on her sides. She did not hit him back because she was afraid; she just tried her best to get away from him. Shidie begged him to stop, saying that she would pay him to quit hitting [her] and quit putting his hands on [her].



Parnell got his guitar and swung and hit [her] with it as she was on the bed balled up like a little knot. He hit her on the left side of her face and head, breaking the guitar. Shidie testified that all she could recall him saying was that she would never fuck another human being again.



He told Shidie not to move, then went to the living room and grabbed his sons guitar. He came back into the room and he was saying, I dont know if I should kill you, if its worth me losing my son over it. Then he said: I got to think about it for a minute . . . . When Shidie said the word Honey, he told her never to call him that again. Parnell then swung at her with the second guitar and tried to hit [her] between [her] legs with it. Shidie explained further: He took the guitar and came down on it over me like if he were going to stab me with it, but it was like hitting me saying I would never use my pussy again in life. Shidie said Parnell swung and tried to hit me between my legs and I closed my legs and he scarred me on my thighs of my legs.



Shidie testified that as Parnell was swinging at her, she was moving all across the bed and he was like going around the bed hitting me because I was trying to get away. When I finally did get off the bed, I ran into the closet. He chased her in and out of the closet, and when she finally did come out, he hit her in the back of the head. She fell to the floor, and he continued stomping her. At that point, she was going in and out of consciousness.



Parnells son came into the room, angering Parnell so that he yelled at the boy, Get your ass out of here and get into your room. Shidie testified that before the boy walked in, Parnell made her strip butt naked, and said This is how you going to be. She said: He made me take off all my clothes and put my underwear in my mouth. She complied because she was scared. He then tied her hands behind her back.



Shidie did not recall which object he hit her with next, but recalled seeing a blue metal chair that belonged to Parnells son. Parnell left the room to get the chair, and at that point, Shidie got up and made a break for the front door. She did not make it: [b]ecause he drug me by my hair and drugged me back into the room. He said I made it worse. She kept begging him to stop.



Parnell grabbed the metal chair and charged back to the room completely beating [her] to [her] left side. He also used a club.[6] All she could see was an object in his hand coming down on top of [her].



While Shidie was gagged and tied up, Parnell also tried to stomp between her legs and stick a cane between her legs. He also beat Shidie with the cane. The first time he hit her with the cane, it bent. The second time, it broke.



Parnell told Shidie to get dressed, which she did with difficulty because she could not move one of her arms. She asked him to help her put her shoes on, which he did. As they were about to leave the apartment, they heard a knock on the door: He told me to stop and hold up. I was leaking blood everywhere. He made me get a rag to clean up my blood, and all of a sudden he punches me directly between my eyes and forehead because my forehead opened. Shidie believe the police were at the door and thought someone must have heard her screaming for help. Parnell told her it was the police and said: We going to go after they leave.



Shidie lay on the floor for about 30 to 45 minutes, going in and out of consciousness. Parnell put a jacket over Shidie and carried her out to the car and drove her to her mothers home in Watts. Parnell had Shidie get out of the car down the street from her moms house and just closed the door like basically like go on with your life and he just took off.



Sometime later, an acquaintance, Camry, and a man found Shidie and took her to her mothers house, but no one was home. They took Shidie to the front (landlords) house where a woman just walked around and did her hair and smoked her cigarette while [Shidie] leaked blood everywhere. She didnt do anything about it.



Shidie lay on the floor drifting in and out of consciousness, but aware of the time passing. She knew she had arrived at 12:00 noon, and it was 3:00 p.m. the next time she saw the time. People were in the house getting high. Coco came in and got nervous and took Shidie to a health clinic. The moment they arrived at the clinic, it seemed everyone rushed to help Shidie.



Shidies injuries were too severe for the clinic, and the paramedics were called. Fire Captain Scott Anderson (Anderson) and six others responded to the call at 3:34 p.m. Shidie was lying on an examination bed in obvious pain. She had multiple abrasions across her body and Anderson could tell she had sustained several fractures. She screamed in pain. Shidie told Anderson that her boyfriend had beaten and assaulted her. He testified Shidie said she had been hog-tied and beaten with a bat, a chair, a guitar, a fist, and the head of a cane.



In the ambulance, Shidie felt pain over her entire body, including her head, arm, back, ribs, and legs. [B]asically every part of [her] body was injured, was hurting.



The ambulance arrived at St. Francis Hospital at about 4:00 p.m. Shidie was immediately assessed as a level one trauma, requiring the attention of a trauma surgeon and anesthesiologist. She had suffered blunt force trauma to her head, face, extremities, and back. The paramedics medical history records showed she had lost consciousness before arriving at the emergency room, an indicator of possible brain trauma. She had facial swelling around her nose and eyes, potentially compromising her breathing. She had trauma to her extremities, including a fracture that could compromise circulation or cause nerve damage. She had sustained trauma to her back which could result in significant injury as well.



Shidie told nurse Elaine Johnson that her boyfriend had assaulted her and that she had been tied up and beaten. She said she had been beaten with a chair and possibly with a bat. Shidie appeared to Johnson to be afraid, scared, terrified, and in pain. Shidie told Johnson she had used cocaine the day before.



The CAT scans were negative, but X-rays showed Shidie had sustained a nasal fracture and a comminuted fracture of her left forearm (the bones were broken, but had not pierced the skin). Her ulnar bone and left forearm had separated. She sustained fractures in the lower back portion of her spinal column. Shidie had bruises on her legs, and swelling. She needed stitches for her facial lacerations and a splint for her left forearm. She was given morphine and another painkiller.



Long Beach Police Officer Dominick Scaccia (Scaccia) spoke with Shidie at the hospital at 6:13 p.m. on February 1, 2008. Shidie had difficulty speaking. She had a bandage on her forehead with dried blood around it and bruising along her left forearm and across her back. She had difficulty remaining conscious but was able to tell Scaccia that Parnell had struck her. She raised her right hand and clenched it in the face as though to demonstrate what he had done to her.



At about 7:00 p.m. that evening, Long Beach Police Detective Scott Jenson (Jenson) tried to talk with Shidie as she slipped in and out of consciousness. She indicated that she had been punched multiple times in the face, that Parnell had stuffed her panties in her mouth, that he struck her with a cane and a blue metal chair, and that he kicked her in the vagina.



After speaking with Shidie, Jenson determined there had been two 911 calls from Parnells apartment building, although he was unable to locate the source of the calls. Tapes of the 911 calls were played for the jury. At 9:49 a.m., a woman had called the Long Beach Police Department and reported that someone was getting beat up in the apartment building where Shidie and Parnell lived. The caller said that a lady kept telling her boyfriend stop hitting her or whatever. Sounds like hes (inaudible) on her all kinda stuff. The caller also said that the victim was saying stop baby stopstop hitting me stop dont do that. Also, [y]ou can tell hes beating her up though. Officers arrived at the scene at 9:54 a.m. and left at 10:27 a.m.



Jenson further testified that the same caller had made a second call at 11:28 a.m. The caller asked if the police ever checked on the lady that was getting beat up by her boyfriend and that the boyfriend was still doing it and that somebody needs to go askactually look at that lady. The caller said, Yeah, its a lady. I keep hearing her say stop it. You can tell shes practically getting beat up. Officers responded to the call at 11:32 a.m. and left at 11:45 a.m.



Shidie testified that [w]hat me and him went through, it was more than an accident. Parnell did not accidentally hit her over the head, punch her in the back of the head, stomp on her, hit her with the guitar, hit her with the second guitar, hit her with the club or bat, drag her back to the bedroom, or tell her to be quiet when they heard a knock on the door. Physicians assistant Worley testified that Shidie could not have sustained her injuries from a fall because she was injured on the front and back of her body. Looking at photographs of Shidies injuries from February 1, 2008, Worley testified that when he saw her on January 31, 2008, she did not have a laceration on her back or two black eyes, as depicted in the photos. She also did not have a fractured arm or broken vertebrae. He testified that it would have been difficult to perform the vaginal examination on January 31, if Shidie had had such injuries. Also, Shidie would not have been discharged from the hospital on January 31, 2008 with a broken nose, lacerations to her head, black eyes, a broken arm, broken vertebrae, and cuts and bruises to her legs. Discharging her in such circumstances, he testified, would have been inhumane and medically inappropriate malpractice.



Detective Jenson testified that he made contact with Parnell at 5:00 a.m. on February 2, 2008. Parnell had no injuries on his face, arms, or hands and did not complain of any injuries. Jenson testified that Parnell was six feet, three inches tall and weighed 240 pounds.[7]



Jenson went to the apartment Parnell and Shidie shared at about 7:30 a.m. the same day In the trash can, he found a bloody rag, a pair of pink G-string underwear, the handle of a broken cane, and female socks and gloves. He found portions of the broken guitars under Parnells sons bed and under the bed in the master bedroom. Also under the master bedroom bed, Jenson found the blue chair and the club (anti-theft device used on the steering wheel of a car vehicle).



Shidie was discharged from the hospital on February 5, 2008.



In addition to the above witnesses, the prosecution called Parnells prior girlfriend Michelle Bishop, who testified that she had had a few violent altercations with Parnell. On a February 20th in the 1980s, Bishop suffered a fractured jaw during one of these altercations. The two had been in a car. Bishop was trying to break off the relationship with Parnell. Parnell became upset and angry and began punching her on the left side of her face with his right fist. Bishop lost count of the number of times he hit her. Bishops left eye was completely swollen and shut closed, and her lip required three sutures. After Bishop reported the incident to the police and was hospitalized, she reconciled with Parnell. Altercations continued, however.



Parnell testified at trial. He met Shidie in June 2007. He testified that Shidie was not living in his apartment in Janaury 2008, but he had a dating relationship with her from November 2007 through early 2008.



About three or four days before February 1, 2008, Shidie called Parnell, told him about the sexual assault by four men, crying. He picked her up and took her to Daniel Freeman Hospital, but they left the hospital without Shidie being seen by a doctor at about 1:30 a.m. because it was late. Parnell testified that he took her to a different doctor the next day, possibly at St. Francis. Parnell denied causing Shidies injuries.[8]



On February 1, 2008, Shidie did not want to leave Parnells apartment. She was not welcome to stay there when Parnell was not home. Shidie ranted and raved and threw Parnells guitar, Parnells sons guitar, and amplifiers around. She threw the two guitars against the wall, breaking them. Shidie was a suicidal drug user who showed up at Parnells house and took things from him. She also hit him with a cane. In trying to control Shidie, both Parnell and Shidie fell to the ground.



On cross-examination, Parnell stated that, on February 2, 2008, he spoke with officers, but did not tell them about the woman who went crazy in his home, swung guitars, and broke guitars.



Parnell admitted injuring Bishop. As a result of that assault on her, he pleaded guilty to a charge and was granted probation.



On June 30, 2008, the jury returned a verdict of guilty on all seven counts, and found true the allegation that Parnell inflicted great bodily injury upon Shidie under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e). Parnell thereafter admitted the prior conviction and prior prison term allegations.



In sentencing Parnell, the trial court chose count 7 (torture) as the base term because it was the highest term. The court sentenced Parnell to a life term with the possibility of parole, with a seven year minimum that was doubled to 14 years pursuant to section 1170.12, subdivisions (a)(d), for an effective term of life with a minimum of 14 years. The court then imposed a five year term for the special allegation of a prison prior, pursuant to section 667, subdivision (a)(1), to run consecutively to all counts and allegations. The court imposed one year for the special allegation under section 667.5, subdivision (b) to run consecutive to all counts and allegations. The court imposed a term of five years for the special allegation of great bodily injury pursuant to section 12022.7, subdivision (e) to run consecutive to all counts and allegations.[9] The trial court imposed one-third the midterm sentences on counts 1 through 6, which were doubled pursuant to section 1170.12, subdivision (c), that is, two years on each of counts 1 through 5[10]and sixteen months on count 6, all of which were to run consecutive to all counts and allegations. Parnell was given credit for days actually served and for good time/work time, for a total of 232 days.



Parnell filed a timely Notice of Appeal.



DISCUSSION



1. Admission of Evidence of 1989 Domestic Violence Incident



Parnell contends the trial court erred in admitting evidence of a prior act of domestic violence that occurred in 1989, pursuant to Evidence Code sections 1109, subdivision (a) and 1101, subdivision (b). He argues the court ignored the requirement of Evidence Code section 1109, subdivision (e), that admission of acts more than 10 years old be in the interest of justice. In addition, under Evidence Code section 1101, subdivision (b), the prior bad act was not relevant to any of the pertinent factors (e.g., motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident) except to prove Parnells predisposition. Parnell argues the courts error was prejudicial and requires reversal because without the evidence, it was reasonably likely the jury could have found that Shidie (a junkie) suffered her injuries in her mothers landlords house after Parnell dropped her off.[11] We disagree.



Evidence Code section 1109, subdivision (a)(1), provides: [I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. (Evid. Code, 1109, subd. (a)(1).) Subdivision (e) of the same section provides: Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice. (Evid. Code, 1109, subd. (e).) Evidence Code section 1101, subdivision (b) provides: Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. (Evid. Code, 1101, subd. (b).)[12] As one court of appeal has explained: evidence of other acts is important in domestic violence cases because of the typically repetitive nature of domestic violence crimes, and because of the acute difficulties of proof associated with frequently uncooperative victims and third-party witnesses . . . who may fear retaliation from the abuser and do not wish to become involved. [Citation.] (People v. Brown (2000) 77 Cal.App.4th 1324, 1333.)



Even if admissible under section 1109, evidence may still be excluded under section 352.[13] If the probative value of the evidence is substantially outweighed by the probability that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or will mislead the jury, it may not be admitted. (Hoover, supra,77 Cal.App.4th at pp. 10281029.) We review the trial courts determination under section 352 for abuse of discretion. (Hoover, supra, 77 Cal.App.4th at p. 1029; People v. Jenkins (2000) 22 Cal.4th 900, 1008.)



Before trial, the defense and the prosecution sought a ruling from the trial court on the admissibility under Evidence Code section 1101 and 1109 of Parnells prior conduct, including the 1989 incident. Defense counsel argued the 1989 incident, the remoteness, its almost 20 years old. The trial court ruled: As to prior conduct, Ms. Marin [the prosecutor] will be able to use it. I dont think it is so remote that the class of crimes similar [sic], both in the 2005[14]as well as the prior conviction for a felony involving girlfriends, same kind of charge, same kind of circumstances, same kind of living arrangements. [] In this Courts opinion, the probative value [is] so substantial in comparison to unfair prejudice. All evidence against the defendant is prejudicial, otherwise its not relevant. The question is is it unfairly prejudicial. I dont think it is because on 1101 and 1109, the similarities are striking, you will be able to use both if you are able to proffer it. [] Thats the law of the case, thats the ruling of the Court.



The evidence of the 1989 incident demonstrated Parnells history of irrational and violent conduct against his girlfriends and was highly probative in this respect. (People v. Cabrera (2007) 152 Cal.App.4th 695, 706.) Admission of this testimony did not pose a serious danger of undue prejudice, confusion of the issues, or misleading of the jury. (People v. Lewis (2001) 25 Cal.4th 610, 637.)



More significant, as respondent points out, the intervening period between the prior act of domestic violence and the events of February 1, 2008 was not violence free. The record contains substantial evidence of previous incidents of Parnell battering Shidie. The prior act was not impermissibly dissimilar to the charged offense. The prior act was considerably less inflammatory than the charged offense, which weighs in favor of its admission. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119 [[r]elevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct].)



The trial courts admission of Parnells prior domestic violence furthered the interest of justice. First, it targeted his credibility. Also, that the incident was more than ten years old did not, in and of itself, call for its exclusion. Incidents as remote from the charged offense as 30 years have been admitted under section 1108.[15] (People v. Branch (2001) 91 Cal.App.4th 274, 284285 [evidence admitted despite 30-year gap between prior act and charged offense]; People v.Frazier (2001) 89 Cal.App.4th 30, 4041 [15 years]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years]; People v. Soto (1998) 64 Cal.App.4th 966, 977978, 991992 [admitting evidence of 20 to 30 year old acts].) Parnell offers no compelling evidence that the trial court failed to consider the appropriate factors when counsel objected to the relevance of the prior acts due to their remoteness in time. We cannot conclude on this record that the trial court abused its discretion by concluding that it furthered the interest of justice to admit the evidence. (People v. Carmony (2004) 33 Cal.4th 367, 377378 [reviewing decision made in furtherance of justice for abuse of discretion].)



Any error in admitting the evidence was harmless. (Cal. Const., art. VI, 13; People v. Alcala (1992) 4 Cal.4th 742, 790791 [admission of unduly prejudicial evidence reviewed for error under People v. Watson (1956) 46 Cal.2d 818].) The evidence of Parnells guilt was overwhelming. His defense that Shidie simply fabricated her testimony was discredited by the documentation of medical professionals that Shidie did not have the injuries 24 hours earlier. Compared to the horrific ordeal Shidie endured on February 1, 2008, the prior act is substantially less inflammatory. We agree with respondent that Parnells claim that Shidies injuries were somehow minor because she was ignored by the drug addicts at the location where Parnell dumped Shidie lacks merit. The violence and brutality inflicted on Shidie was on a scale well beyond that of the prior act, and we fail to see any risk that the jury would be confused or inclined to punish Parnell for that earlier incident of domestic violence. We reject Parnells contention.



2. Applicability of Section 654



Parnell contends that the trial court erred in imposing terms on counts 1 through 6 to run consecutive to each other and consecutive to the term imposed on count 7 (torture). He argues the terms on the first six counts should be stayed under section 654, subdivision (a), because the crimes committed in counts 1 through 6, four counts of assault, and one count each of spousal abuse and unlawful imprisonment were clearly incidental to or the means of accomplishing or facilitating the crime of torture. In particular, [t]here was no act that could constitute torture other than the assaults, there was no act that could constitute spousal abuse other than the assaults that were the means of accomplishing the torture, and there was no reason to unlawfully imprison the victim other than to facilitate the torture. We agree.



Section 654 provides: 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.) The section precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; see also People v. Centers (1999) 73 Cal.App.4th 84, 98; People v. Akins (1997) 56 Cal.App.4th 331, 338339; People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)



Whether a course of conduct is indivisible for purposes of section 654 depends on the actors intent and objective. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) In contrast, if the evidence shows that the defendant entertained multiple criminal objectives independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct. (People v. Centers, supra, 73 Cal.App.4th at p. 98.) The principal inquiry in each case is whether the defendants criminal intent and objective were single or multiple. (People v. Beamon (1973) 8 Cal.3d 625, 636639.)



A defendants intent and objective are factual matters for the trial court to determine.[16] (People v. Osband, supra, 13 Cal.4th at pp. 730731.) We must affirm the sentence if substantial evidence supports the trial courts determination that defendant entertained multiple objectives in the commission of crimes occurring during a single course of conduct. (Ibid.) Trial courts are given broad latitude when determining whether section 654 applies factually to a given series of offenses. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.)



Each of the first four counts charged an assault with a separate implement, namely, two guitars, a cane, and a metal chair. The prosecutor argued to the jury that each assault count was for a unique object. Count 5corporal injury on a cohabitant ( 237)appears to have applied to Parnells initial pounding and punching Shidie with his fists before he went searching for implements. The acts underlying the sixth count, for false imprisonment, occurred when Shidie tried to run to the door and he dragged her back in. She had been beaten for hours and was begging for this beating to stop. The prosecutor told the jury we know that this confinement took place because she is screaming for two hours according to the 911 calls.



On count 7, the trial court instructed the jury that to convict defendant of torture, it had to find Parnell inflicted the injury with specific intent to cause cruel or extreme pain and suffering for the purpose of revenge, persuasion, or any sadistic purpose. The prosecutors theory was that the entire incident, consisting of repeated beatings and imprisonment, constituted the torture. She submitted the torture count to the jury on the theory that the incident rose to the level of torture because it was so prolonged and because Parnells actions indicated that he acted with the specific intent to inflict extreme pain for revenge (notably, stabbing Shidie repeatedly with the guitar in her vaginal area to prevent her from ever having sex again) or for the sadistic purpose of punishing Shidie for not doing the dishes or for contracting an STD. The prosecutor said: If you were sitting there for two hours getting beat like this, would you think its torture? She was sitting there for hours fearing for her life, thinking that sheher life was over as she said. This is torture. The People have proven it. . . . You have the 911 calls. This went on for two hours. It was not a beating that took place over 20 minutes or ten minutes or five. It went on for hours. The delays between the beatings and imprisonment were an integral part of the torture, sadistic in and of themselves.



Respondent has failed to identify, and the evidence does not support the conclusion that Parnell harbored any separate and distinct objectives in committing the torture as compared to each of the offenses charged in counts 1 through 6. The assaults, corporal injury, and imprisonment were means to an overarching end. It was the fact that the offenses took place over a lengthy period of time that supported the torture charged in count 7. Precisely because the torture and the offenses charged in counts 1 through 6 stemmed from the same continuous course of conduct, and the record does not reflect that Parnell harbored separate and distinct objectives in committing these crimes, separate punishment on the first six counts is barred by section 654. (People v. Hester, supra, 22 Cal.4th at p. 294; People v. Perez (1979) 23 Cal.3d 545, 551552.) The judgment must be modified to reflect stayed terms on counts 1 through 6.



3. Correction of the Abstract of Judgment



Respondent contends (and Parnell does not dispute) that the trial courts oral pronouncement during sentencing of a term of two years on count 5 does not appear in the abstract of judgment or the court minutes and that this clerical error must be corrected. The oral pronouncement of judgment controls over the clerks minute order; any discrepancy between the two is presumed to be clerical error in the minute order (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471), which may be corrected at any time to reflect the courts pronouncement. (See People v. Mitchell (2001) 26 Cal.4th 181, 183, 185188.) We agree and will order the abstract of judgment to be corrected accordingly.



DISPOSITION



The trial court is directed to stay the sentences on counts 1, 2, 3, 4, 5, and 6, pursuant to section 654. The abstract of judgment shall be corrected to reflect the two- year term imposed by the trial court on count 5. In all other respects, the judgment is affirmed.



NOT TO BE PUBLISHED.



JOHNSON, J.



We concur:



MALLANO, P. J.



ROTHSCHILD, J.



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[1]Unless otherwise indicated, all further statutory references are to the Penal Code.



[2]The sentence imposed on count 5 is reflected in the reporters transcript but not in the court minutes or the abstract of judgment. We will order the abstract of judgment to be corrected, as discussed below.



[3]The court chose consecutive sentence[s] for the crimes because the defendant used different instruments to commit each of the crimes, therefore, the crimes are discrete of each other. For instance, he used guitars to beat the victim. He also used a cane to beat the victim. He used a chair to beat the victim. Each of these instruments was used separately from each other, and at discrete times.



[4]The record is not entirely clear, but Shidie testified that Parnell told her he had an STD sometime in December 2007.



[5]Shidie acknowledged she had a severe drug problem and had been convicted of drug possession. In January to February 2008, it was a $200 a day habit.



[6]Shidie originally thought it was a bat.



[7]At the sentencing hearing, Parnells counsel stated the alleged victim was 52 and maybe a hundred twenty pounds.



[8]On cross-examination, Parnell testified that on January 30, 2008, he learned he had tested positive for an STD, which he believed he contracted from Shidie. He stated he was disappointed, not upset with her: Knowing her and her activities, I was involved with it, you know what Im saying? . . . I knew of her activities and that was a chance that I took, so I had to be man enough about it and support her.



[9]Before oral argument, we asked counsel to be prepared to discuss an issue not addressed in the briefs, specifically, why this term should not be stayed because it appeared to be an element of section 206, which makes a person guilty of torture for inflict[ing] great bodily injury as defined in Section 12022.7 upon the person of another . . . . Subdivision (g) of section 12022.7 states the enhancement of [s]ubdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense. Subdivision (e), the one at issue here, is not listed, suggesting that the Legislature did not intend to preclude application of this additional and consecutive term of punishment.



[10]The sentence for the count 5 conviction does not appear in the court minutes or the abstract of judgment. As discussed below, the abstract of judgment must be corrected to reflect the accurate sentence imposed.



[11]At the trial, Parnells counsel argued in closing that Shidies injuries were a result of the rapes she suffered four days before the offenses at issue here: Ms. Shidie was beaten and raped by four men within days of this incident. Yet, when the People put up their graph and charts, and we dont have any of this high fancy stuff, she said she had sex. Ms. Shidie had sex with four men. That was the most water-downed fact she could have possibly put on that board. [] Ms. Shidie was raped and beaten by four men. The injuries that she suffered are everywhere. They are in her face. They are on her body. They are in her legs. They are bruises, cuts, consistent with someone who has been beaten by four people.



[12]Parnell appears to argue that section 1101, subdivision (b) prohibits the admission of evidence of prior acts of domestic violence to show his disposition to commit the instant offenses. This view reflects a misunderstanding of the relationship between sections 1101 and 1109. Although before Evidence Code sections 1108 and 1109 were enacted, prior bad acts were inadmissible when their sole relevance was to prove a defendants propensity to engage in criminal conduct (see Evid. Code,  1101; People v. Falsetta (1999) 21 Cal.4th 903, 911, 913), their enactment created statutory exceptions to the rule against the use of propensity evidence, allowing admission of evidence of other sexual offenses and other acts of domestic violence in cases charging such conduct to prove the defendants disposition to commit the charged offense. (Id. at p. 911; People v. Hoover (2000) 77 Cal.App.4th 1020, 1026 (Hoover) [Section 1109 thus supplants the usual rule of evidence that evidence of past conduct is not admissible to prove a defendants conduct on a specified occasion.].)



[13]Evidence has probative value when it is relevant to the issues before the jury, specifically, when it has any tendency in reason to prove or disprove a disputed fact in issue . . . . (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The prejudice referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, prejudicial is not synonymous with damaging. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 320.)



[14]The prosecution also sought admission of evidence related to a 2005 incident, not at issue on this appeal.



[15]Section 1108 allows admission of evidence of uncharged sexual offenses, just as section 1109 allows in evidence of uncharged domestic violence. The provisions are virtually identical, and cases interpreting section 1108 have been relied upon to resolve similar issues involving section 1109. (People v. Johnson (2008) 164 Cal.App.4th 731, 739; People v. Johnson (2000) 77 Cal.App.4th 410, 417; People v. Brown, supra, 77 Cal.App.4th at p. 1333.)



[16]There was no discussion of section 654 during the sentencing hearing, nor did the trial court allude to it in pronouncing sentence. The absence of a reference to section 654 during sentencing and the fact the trial court did not stay the sentence on any count is generally deemed to reflect the courts implicit determination that each crime had a separate objective. (See, e.g., People v. Blake (1998) 68 Cal.App.4th 509, 512; People v. Osband (1996) 13 Cal.4th 622, 730731.)





Description In June 2008, a jury found appellant Ricky Parnell (Parnell) guilty of four counts of assault with a deadly weapon (Pen. Code,[1] 245, subd. (a)(1); counts 14), one count of corporal injury to a spouse or coinhabitant ( 273.5, subd. (a); count 5), one count of false imprisonment by violence ( 236; count 6), and one count of torture ( 206; count 7), all against the same victim, Eleather Shidie (Shidie). It was further alleged as to all seven counts that: (1) Parnell personally inflicted great bodily injury ( 12022.7, subd. (e)); (2) Parnell had one prior prison term ( 667.5, subd. (b)); (3) Parnell had one prior serious felony conviction ( 667, subd. (a)(1)); and (4) Parnell had one prior strike conviction ( 1170.12, subds. (a)(d), and 667, subds. (b)(i)).
In this appeal, Parnell contends: (1) the trial court committed prejudicial error in admitting evidence of a 1989 incident of domestic violence; and (2) the trial court erred in ordering the sentences on counts 1 through 6 to run consecutively to the term imposed on count seven rather than staying the first six sentences pursuant to section 654. Respondent maintains the abstract of judgment must be corrected to properly reflect the sentence imposed on count five. As there was no substantial evidence that Parnell entertained multiple independent criminal objectives on each of counts 1 through 6, we conclude the sentences should have been stayed under section 654. Court order the sentences on counts 1 through 6 stayed and the abstract of judgment corrected and otherwise affirm the judgment.


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