P. v. Price
Filed 8/27/13
P. v. Price CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
CHERYL LYNN PRICE,
Defendant and
Appellant.
F065051
(Super.
Ct. No. VCF245231)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Brett Alldredge, Judge.
Linda J.
Zachritz, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Catherine T. Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant
Cheryl Lynn Price (defendant) was convicted of two counts of
to a single objective. Therefore, she
argues, the sentencing court erred in imposing a 30-day jail sentence on each
count. (See Pen. Code, § 654,
subd. (a).) We disagree and affirm.
FACTS
I.
PROCEDURAL
BACKGROUND
Defendant
was charged with two counts of resisting an officer by threat or violence. (Pen. Code,
§ 69.) A prior serious felony
conviction was also alleged as to each count.
(§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d).)
After
trial, the jury found defendant not guilty as to the two section 69
counts. The jury found defendant guilty
of the lesser included offense of resisting a peace officer. (§ 148, subd. (a)(1).) Defendant was sentenced to 30 days in jail on
count 1. On count 2, the court sentenced
defendant to another 30 days in jail consecutive to count 1. Time was deemed already served on both
sentences.
II.
TRIAL EVIDENCE
Jason Baillie (Baillie) is a
correctional deputy for the Tulare County Sheriff’s Department. In August 2010, Baillie was responsible for
the custody, care, supervision, security, and transportation of inmates at the
Adult Pretrial Facility at the Tulare County Jail. On August 15, 2010, Baillie was in the infirmary
assisting a licensed vocational nurse attempting to take defendant’s vital
signs. Baillie and Deputy Sheriff Jerry
Yang (Yang) accompanied the nurse into defendant’s cell.
When the door to defendant’s cell
was opened, defendant was sitting on a bunk pressing the intercom button. Baillie testified that the intercom button
was “an emergency button in case an inmate needs emergency assistance.†Baillie entered the cell and defendant said,
“ ‘What are you looking at[,] stupid?’ †Baillie did not respond. The nurse advised defendant he was there to
take her vitals. Defendant responded,
“ ‘Why in the f**k did you lie saying I refused my meds?’ †Baillie told defendant not to speak to
medical staff in that manner and to calm down.
Defendant responded, “ ‘F**k you too.’ †Baillie testified that defendant’s demeanor
was “agitated†and “defiant†as she spoke.
Her tone of voice was “antagonistic†and “loud.â€
Baillie observed defendant had a
golf pencil “clenched†in her right hand.
The pencil was approximately three to four inches long and had been
sharpened at one end. The sharpened end
was oriented towards Baillie, Yang and the nurse. Baillie told her to drop the pencil. Defendant responded, “ ‘F**k
you,’ †and did not drop the pencil.
Baillie again told defendant to drop the pencil and to place her hands
on the wall. Defendant did not comply
and responded, “ ‘F**k you, hell no.’ †Baillie attempted to grab defendant’s right
arm. Defendant moved her arm behind her
back. Baillie grabbed her arm. Defendant began to “kick†and “flail†her
legs, swing her arms, and scream.
Baillie attempted to pull defendant
off of the bunk towards the ground.
Defendant was “resisting backwards†as Baillie tried to “pull her
forward†to the ground. After Baillie pulled
her off of the bunk, she landed on her side.
She moved from her side to her back and attempted to scratch Baillie’s
face. Both of her arms were “flailing
towards†Baillie’s face, and her nails were “out towards†Baillie.
Yang assisted by attempting to gain
control of defendant’s left arm.
Defendant swung her closed fist at Yang.
The swing came “pretty close†to Yang’s face, but he was able to move
and avoid being struck.
Eventually, Baillie was able to
gain control of one of defendant’s arms, and secure one of her hands in
handcuffs. Yang gained control of her
other hand and Baillie was able to handcuff her.
Baillie and others escorted
defendant from her cell. Defendant
yelled obscenities, dragged her feet, and made the deputies carry her entire
body weight. After the incident, Baillie
observed a one-inch scratch on his right forearm. Baillie did not have the scratch before
entering defendant’s cell that day, and that scratch was actively bleeding.
ANALYSIS
I.
INTRODUCTION
Defendant
contends that the sentencing court violated section 654 when it imposed
sentences on both counts.
Section 654 provides, in part, that
an “act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.…†(§ 654, subd. (a).) Case law has “engrafted†a broadened scope onto
section 654. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Now, the statute also prohibits multiple
punishments where all of the offenses were incident to one objective. (Id. at
p. 1208.)
Additionally,
“ ‘there is a “multiple victim†exception to section 654. Under this exception, “even though a
defendant entertains but a single principal objective during an indivisible
course of conduct, he may be convicted and punished for each crime of violence
committed against a different victim.†’ †(People v. Centers (1999) 73 Cal.App.4th 84, 99.)
II.
STANDARD OF
REVIEW
“As a general rule, the sentencing
court determines the defendant’s ‘intent and objective’ under section 654. [Citation.]â€
(People v. Cleveland (2001) 87
Cal.App.4th 263, 268.) When a sentencing
court imposes separate terms, we assume an implied finding that defendant had separate
criminal objectives. (See
1354, 1378; People v. Andra (2007)
156 Cal.App.4th 638, 641. See also
730-731.) That implied finding
“ ‘ “ ‘will be upheld on appeal if it is supported by
substantial evidence.’ †’ â€
(People v. McKinzie (2012) 54
Cal.4th 1302, 1368.)
“We review the trial court’s
determination in the light most favorable to the respondent and presume the
existence of every fact the trial court could reasonably deduce from the
evidence. [Citation.]†(People
v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
III.
MULTIPLE
OBJECTIVES VS. MULTIPLE VICTIMS
“Section 654 precludes multiple
punishment for a single act or omission, or an indivisible course of
conduct. [Citations.]†(People
v. Deloza (1998) 18 Cal.4th 585, 591.)
Determining whether defendant entertained one or more objectives and
intents is a threshold inquiry for whether section 654 applies at all. (See People
v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.) On the other hand, the multiple victim
exception only becomes relevant if that threshold factor is present; (i.e.,
there is a single objective or act).
That exception permits multiple punishment “ ‘ “
single principal objective during an indivisible course of
conduct .…†’ †(
This concept can be illustrated by
comparing the two cases relied on most heavily by the People: People
v. Hairston (2009) 174 Cal.App.4th 231, 240 (Hairston) and People v.
Martin (2005) 133 Cal.App.4th 776 (Martin). Both cases involve resisting an officer. (See Hairston,
supra, 174 Cal.App.4th at p. 233
[§148, subd. (e)]; Martin,
[§ 69].) And, in both cases, the
court concluded that multiple punishments were permissible. But the rationales of the two cases are
different. Hairston upheld the implied finding that
the “defendant had a separate
objective for each violation of section 148.â€
(Hairston,
italics added.) That is, the threshold test for section 654’s applicability
(i.e., a single act or objective) was not met.
Therefore, multiple punishment was permissible. (Id. at
p. 240.) Conversely, Martin
held the defendant’s conduct did arise from a
single objective, but multiple punishment was permissible nonetheless by
virtue of the multiple victim exception.
(Martin, supra, 133 Cal.App.4th at p. 781.)
As explained, post, we find substantial
evidence supports the sentencing court’s implied finding that defendant
harbored separate objectives for each offense.
Therefore, we need not determine whether the multiple victim exception
relied on by Martin would have
otherwise applied.
SENTENCING COURT’S IMPLIED FINDING OF SEPARATE OBJECTIVES
Defendant argues the evidence does
not support an inference that she “formed separate and distinct intents to
swing at one deputy and scratch at the other.…â€
She contends “the evidence indicated that her movements were incidental
to being ‘pulled around’ by the deputies.â€
We disagree, as the evidence supports a finding that defendant attempted
to resist the deputies in distinct ways.
Baillie testified that defendant
scratched him with her “nails out†and “fingers extended and separated.†Baillie described defendant’s arms as
flailing “towards my face†and her nails as “out towards me.†Defendant subsequently swung her “closed
fist†at Yang. Her swing came “pretty
close†to Yang’s face.
This evidence suggests defendant
intended to separately resist each deputy and to do so in distinct ways. In the separate instances of resistance,
defendant’s finger positions and arm movements were distinct in their nature
(“closed fist†vs. “fingers extended and separatedâ€) and their direction (nails
“out towards†Baillie vs. swinging “pretty close†to Yang’s face). She scratched Baillie but tried to punch Yang. And, the evidence that her swing came “pretty
close†to Yang’s face suggests she was aiming at him. Similarly, the evidence that she flailed her
arms “towards†Baillie’s face with her nails “out towards†him suggest she was
attempting to scratch Baillie specifically.
These facts support the sentencing
court’s implied finding defendant “formed a new and independent intent with
each [deputy she] encountered.†(
court, “[w]e conclude on the facts of this case that substantial evidence
supports the trial court’s implicit determination that defendant had a separate
objective for each violation of section 148.â€
(Ibid.)
The judgment is affirmed.
Detjen, J. and Franson, J.
All further statutory references are to the Penal Code unless otherwise noted.
