P. v. Shoals
Filed 1/17/13 P. v. Shoals 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
BOBBY DIAL
SHOALS, JR.,
Defendant and Appellant.
F063599
(Kings Sup. Ct. No. 10CM0303)
APPEAL
from a judgment of the Superior Court of
County. Robert S. Burns, Judge.
David
Y. Stanley, 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, Senior Assistant Attorney General, Michael A.
Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Appellant/defendant
Bobby Dial Shoals, Jr., was convicted of multiple felony offenses based on the
sexual assault of his former girlfriend.
He was sentenced to 13 years plus 120 years to life, based on both the
one strike law (Pen. Code,
name="_ftnref2" title="">[1] § 667.61) and a second
strike (§ 667, subds. (b)-(i)).
On
appeal, defendant contends the court should have given the unanimity instruction
to the jury, and it was improperly instructed as to whether the testimony of a
single witness could support the sexual assault charges. He also contends that part of his sentence
should have been stayed pursuant to section 654. We will correct defendant’s sentence and
otherwise affirm.
C.B.
dated defendant between February and August 2008. She ended their relationship because
defendant hit her “a couple times.†When
they broke up, C.B. took her apartment key back from defendant. Defendant called her several times and left
“nasty messages†for her, but she never returned the calls.
Around
8:00 p.m. on September 5, 2008, C.B. saw defendant at the apartment complex
where his father lived. Defendant asked
C.B. if he could visit her at her apartment, and promised not to argue or fight
with her. C.B. agreed to a brief visit,
and defendant said he would follow her back to her apartment. C.B. went back to her apartment but defendant
did not arrive when he said he would.
Around
midnight, Gary Jones arrived at C.B.’s apartment and stayed for several
hours. C.B. and Jones were in a dating
relationship. Around 3:00 a.m.,
defendant arrived at her apartment, knocked on the door, and tapped at the
window. Defendant talked to C.B. through
the window and asked to come in. C.B.
said no, that she had expected him earlier, but she had company and he needed
to leave. Defendant said he was going to
“bust all the windows out†if she did not open the door. C.B. refused to let him in, and defendant
eventually left.
C.B.
testified she went back to sleep, and later realized Jones left while she was
sleeping. At some point after Jones
left, C.B. was awakened by her bedroom light being turned on. C.B. saw defendant in her bedroom, about
three feet away from her. He approached
the bed and punched C.B. on the left cheek and ear with a closed fist. The force of the blow knocked C.B. off the
bed and onto the floor.
Defendant
continued to strike C.B. while she was on the floor. Defendant hit her in the face, mouth,
shoulders, and legs. Defendant
repeatedly asked C.B. if she was “f******?â€
C.B. said no. Defendant grabbed
her arm, told her to stand in front of him, and pulled C.B. close to him. Defendant placed two fingers inside her
vagina. C.B. did not try to stop him
because she was dizzy and felt physically beaten.
Defendant
told C.B. to lie down on the bed. C.B.
did not respond, but just stood there and cried. Defendant hit her face again, and she fell on
the bed. Defendant removed his belt and
said, “ ‘I think you [will] like this, this is what you want.’ †Defendant hit C.B.’s buttocks with his belt
one time. C.B. crawled toward the
headboard to get away from him.
C.B.
was very dizzy and in pain, and her ears were ringing. She begged him to stop. Defendant warned C.B., “ ‘[D]on’t make
me hit you in the face with this belt.’ â€
C.B. finally complied with his order to lie on the bed. Defendant removed his pants, got on top of
her, and told her to “be quiet and to shut up.â€
Defendant raped C.B. C.B. was
crying, and afraid he would kill her if she resisted. After he finished the sexual act, he put on
his pants and left the room. C.B.
remained on the bed.
C.B.
was still lying on the bed when defendant returned to the bedroom. Defendant raped her again, and then committed
an act of sodomy. C.B. repeatedly begged
him to stop and said that it hurt.
Defendant replied that he had almost completed the sexual act. Defendant finally finished and left the
room. C.B. testified she passed out.
C.B.
testified that she woke up and felt defendant lying behind her. Defendant told her, “ ‘Yes, I am laying
here and you are going to have to deal with it.’ †In the morning, C.B. told defendant that she
had to go to work. Defendant said that
he was not keeping her against her will.
C.B. left the apartment and went to work.
The victim’s injuries
C.B.
told her employer what happened to her, and her employer called the
police. C.B. went to the hospital for a
sexual assault examination. C.B. had
multiple bruises and abrasions on her head, arms, back, and buttocks. Her face was swollen and her ear was
bleeding. She suffered a ruptured
eardrum. She also had superficial
lacerations consistent with a nonconsensual act of anal sex. It was stipulated that the physician who
treated C.B. believed that a ruptured eardrum constituted great bodily
injury. The prosecution introduced
photographs which were taken of the victim’s injuries.
Defendant’s arrest
Later
on September 6, 2008, Officer Shearer arrested defendant at his apartment on
four outstanding warrants. Defendant
asked what else he was being arrested for.
Shearer again said he was being arrested for outstanding warrants, and defendant
again asked if there was anything else.
Shearer asked if there was something else to arrest him for, and
defendant did not reply.
Defendant
was taken to the police department, and advised of the Miranda
name="_ftnref3" title="">[2] warnings. Defendant agreed to answer questions. Officer Shearer said he wanted to talk about
an incident that occurred earlier that morning at C.B.’s apartment. Defendant said he did not know what Shearer
was talking about, and he did not know C.B.
The police
collected defendant’s clothing, and also obtained blood, hair, and DNA samples
from him. Defendant refused to open his
mouth for an oral swab.
Defendant then
told Officer Shearer that he wanted to talk about the incident. Defendant said that he knew C.B. and he had
been at her apartment. Defendant
admitted he knocked on her window and saw another man there. He waited for the other man to leave, and
then he went into the apartment and talked with C.B. He denied having sex with her that night, and
denied hitting her. However, defendant said
he had sex with C.B. a few days earlier.
He also admitted that he tried to have anal sex with her a few days
earlier, but he stopped when she said that she did not like it. C.B.’s DNA was found on biological samples
taken from defendant’s body.
Defendant
was taken into custody. He called C.B.
96 times from jail, from September 6 to November 3, 2008. During the various calls, defendant told
C.B., “don’t testify please,†“they can’t make you do it,†and “I’m sorry.â€
Defendant
testified at trial and admitted he had a prior conviction for robbery in
1997. Defendant testified that he dated
C.B. for eight months in 2008. Their
relationship ended because C.B. was seeing other people behind his back. She wanted to see other men, and she took her
apartment key from him. Defendant
testified he never hit C.B. during their relationship.
Defendant
testified that he saw C.B. at his parents’ home on the afternoon of September
5, 2008. C.B. invited defendant to her
apartment, and he agreed to come by later that day. However, he wasn’t able to get there until
around 11:45 p.m. He knocked on the
front and back doors, but she did not respond.
He tapped on the bedroom window and heard someone ask, “Who is
it[?]†Defendant identified himself, and
C.B. said to wait a minute. He went back
to the front door and saw Gary Jones walk out.
Defendant and Jones briefly spoke, and then defendant went into the
apartment.
Defendant
testified he went into C.B.’s bedroom and talked to her while she was in
bed. They started to argue, and C.B.
slapped defendant. Defendant slapped her
back. C.B. kicked and threw punches at
defendant, and he slapped her about three times. Defendant admitted he swung his belt and hit
her leg. Defendant testified he had
never touched C.B. before that night.
Defendant admitted he called her a whore, but denied making any threats.
Defendant
testified he went into the front room and had something to eat. About an hour later, C.B. asked him to return
to the bedroom. C.B. apologized and they
“kissed and made up.†Defendant
testified they had consensual oral sex, and twice had consensual sexual
intercourse. He tried to have anal sex
with her, but she asked him to stop.
Defendant testified C.B. did not have any injuries on her face and never
said her ear was ringing.
Later
that day, C.B. called defendant and said she was going to the hospital because
her ear hurt. A few hours later, the
police arrived and arrested him.
Defendant said the officer only talked to him about outstanding
tickets. Defendant denied making some of
the statements attributed to him by the officer and refusing to cooperate with
the oral swab sample. Defendant admitted
he did not tell the police that they had sex that night. Defendant also admitted that he repeatedly
called C.B. from jail and apologized for slapping her.
The charges, convictions, and sentence
After
a jury trial, defendant was convicted as charged of counts I and II,
unlawful sexual intercourse by force,
violence, duress, menace, or fear of immediate bodily injury (§ 261, subd.
(a)(2)); count III, unlawful sexual penetration by force, violence, duress,
menace, or fear of immediate bodily injury (§ 289, subd. (a)(1)); count
IV, sodomy by force, violence, duress, menace, or fear of immediate bodily
injury (§ 286, subd. (c)(2)); count V, battery causing serious bodily
injury (§ 243, subd. (d)); and count VIII, assault by means of force
likely to produce great bodily injury (§ 245, subd. (a)(1)).
Defendant was
found not guilty of count VII, assault with intent to commit a felony during
commission of a first degree burglary (§ 220, subd. (b)), but instead the
jury found him guilty of the lesser offense of misdemeanor assault
(§ 240). Defendant was found not
guilty of count VI, first degree burglary (§ 459).
As
to counts I through IV, the jury found true the special allegations that
defendant personally inflicted great bodily injury on the victim during the
commission of the offense (§ 12022.8), under circumstances involving
domestic violence (§ 12022.7, subd. (e)), and within the meaning of the
one strike law (§ 667.61, subds. (b), (e)). As to counts V and VIII, the jury separately
found defendant inflicted great bodily injury under circumstances involving
domestic violence (§ 12022.7, subd. (e)).
Defendant admitted he had one prior serious felony conviction
(§ 667, subd. (a)(1)) and one prior strike conviction (§ 667, subds.
(b)-(i)).
Defendant
was sentenced to 13 years plus 120 years to life as follows: count I, 15 years to life, doubled to 30
years to life because of the second strike, plus a consecutive term of five
years for the prior serious felony enhancement; counts II, III and IV,
consecutive terms for each count of 15 years to life, doubled to 30 years to
life; count V, a consecutive upper term of four years, doubled to eight years;
and count VII, a concurrent term of 120 days.
The court stayed the term imposed for count VIII.
I.
The unanimity instruction was not required for count VIII
In
count VIII, defendant was charged and convicted of assault by means of force
likely to produce great bodily injury (§ 245, subd. (a)(1)). Defendant contends the court should have
given the unanimity instruction as to this count because there were two
separate acts which could have supported the offense: either defendant’s acts of punching C.B. in
the left cheek and ear with his closed fist, or hitting her buttocks with his
belt.
A.
In
closing argument, the prosecutor addressed the acts which supported each of the
charged offenses. In the course of the
argument, the prosecutor discussed C.B.’s testimony about the sequence of the
sexual assault:
“[Defendant] [c]ame in … [h]e
immediately goes to the bedroom, confronts her, and when she stands up what is
the first thing that he does? Pow, right
here. And we have got proof of that
because you saw the mark, knocks her down, continues to assault her and then
beats her with a beltâ€
The
prosecutor offered the following analysis for count VIII:
“Now,
Count 8, this is the last of the counts, what we call a [section] 245, assault
on the person, force likely to cause great bodily injury. You will see this in a couple of different
places. The first element, the defendant
did an act, you have heard this one before .…
“The
defendant did an act by its nature would directly and probably result in the
application of force to a person.
pick. The fist right here or the belt. Now we know the belt was admitted, and you
can see the picture. You will actually
see, and the defendant admitted you could see the stitch marks from the belt in
the picture.
“The force
was likely to cause great bodily injury.
We know the fist was likely to because it did, but the application of a
belted point that it leaves a welt, bruise, call it what you will, but you can
still see the stitch marks? Yes.
“The
defendant did the act willful. Well, he
had to, he either hit her or, you know, knew what he was doing or do it or the
belt is exactly the same thing.…
“When the
defendant acted he was aware of facts that would lead a reasonable person … to
realize that his act by its very nature would directly and probably result in
the application of force to somebody.
Well, in swinging your fists you know that it is going to – if you’re
swinging at them it is going to hit them.
You swing the belt, exactly the same analysis.
“Finally,
when the defendant acted he had the present ability to apply force likely to
produce or cause that great bodily injury.
We [have] seen the results, so we know that that element is met.â€
In defense
counsel’s closing argument, he asserted that defendant’s trial testimony was
consistent and reasonable, that defendant and C.B. argued, C.B. hit defendant,
defendant reflexively slapped C.B., they made up, and they had consensual
sex. Defendant asserted that to whatever
extent C.B. was injured during their mutual fight, her injuries did not
constitute great bodily injuries.
B.
Defendant
asserts the court should have given the unanimity instruction as to count VIII,
assault by means of force likely to produce great bodily injury, based on the
prosecutor’s closing argument that the charge could have been based on
defendant’s act of either punching C.B. in the face or striking her with the
belt.
“As
a general rule, when violation of a criminal statute is charged and the
evidence establishes several acts, any one of which could constitute the crime
charged, either the state must select the particular act upon which it relied
for the allegation of the information, or the jury must be instructed that it
must agree unanimously upon which act to base a verdict of guilty. [Citation.]
There are, however, several exceptions to this rule. For example, no unanimity instruction is
required if the case falls within the continuous-course-of-conduct exception,
which arises ‘when the acts are so closely connected in time as to form part of
one transaction’ [citation], or ‘when … the statute contemplates a continuous
course of conduct of a series of acts over a period of time’ [citation]. There also is no need for a unanimity
instruction if the defendant offers the same defense or defenses to the various
acts constituting the charged crime.
[Citation.]†(
616, 679.)
“ ‘[T]he
“continuous course of conduct†exception – when the acts are so closely
connected that they form one transaction – is meant to apply not to all crimes
occurring during a single transaction but only to those “where the acts
testified to are so closely related in time and place that the jurors
reasonably must either accept or reject the victim's testimony in toto.†[Citation.]’
[Citation.]†(
287, 299; People v. Bui (2011) 192
Cal.App.4th 1002, 1011.)
While this scenario has been described as an exception to the
requirement for the unanimity instruction, “[i]t would seem more accurate to
say that, in this situation, a unanimity instruction is
required, but the failure to give one is harmless. [Citation.]â€
(People
v. Lueth (2012) 206 Cal.App.4th 189, 196.)
As applied to
the instant case, C.B. described a harrowing scene in her bedroom, where
defendant surprised her and punched her in the cheek and ear. She fell to the floor, where defendant
punched and kicked her. He performed an
act of digital penetration and then ordered her onto the bed. When she hesitated, he removed his belt and
hit her in the buttocks. When she tried
to resist, he threatened to hit her in the face with his belt. He then got onto the bed and raped her. The prosecution introduced photographic
evidence of the welt inflicted by the belt, and it was stipulated that C.B.’s
physician believed the injury to her ear constituted great bodily injury.
At trial,
defendant admitted that he slapped C.B. in the face and hit her with his
belt. However, he insisted that she
punched him first, and he reflexively hit her back. He also insisted that they reconciled and had
consensual sex, and C.B. never said that she was suffering from any pain. In closing argument, defense counsel argued
defendant’s account was reasonable, and that C.B. did not suffer great bodily
injury.
Based on the
specific facts of this case, the court’s failure to give the unanimity
instruction was necessarily harmless since the violent assault occurred within
an extremely short period of time, in one isolated location, and defendant
tendered the same defense to the entirety of the offenses – that they
purportedly engaged in mutual combat, C.B. was not injured, and they had
consensual sex. (See, e.g.,
261, 266.)
II.
CALCRIM No. 1190
Defendant
next contends the court improperly instructed the jury with CALCRIM No. 1190,
as to the testimony of a single witness to prove sexual assault offenses. Defendant asserts the instruction erroneously
reduced the prosecution’s burden of proof.
As
relevant to defendant’s arguments, the court instructed the jury with
of a sexual assault crime may be based on the testimony of a complaining
witness alone.†The court also
instructed the jury pursuant to CALCRIM No. 301: “The testimony of only one witness can prove
any fact. Before you conclude that the
testimony of one witness proves a fact, you should carefully review all the
evidence.â€
Defendant
acknowledges that his instructional arguments were rejected in
which addressed the virtually-identical predecessor instructions, and held they
were correct statements of the law and did not reduce the prosecution’s burden
of proof. (Id. at p. 700.) Defendant
attacks the reasoning in Gammage’s
majority opinion, asserts that the majority opinion is somehow outdated, and
urges this court to follow the concurrence in Gammage. We decline to do
so. We agree with Gammage and are
bound by its conclusions. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III.
Section 654
Defendant
next challenges the court’s imposition of sentence of the assaultive
offenses. Defendant notes that the court
stayed imposition of sentence for count VIII, assault by means of force likely
to produce great bodily injury (§ 245, subd. (a)(1)). Defendant now contends the court also should
have stayed imposition of the consecutive term for count V, battery causing
serious bodily injury (§ 243, subd. (d)); and the concurrent term for the
lesser offense for count VII, misdemeanor assault (§ 240).
The
People concede the concurrent term for count VII should have been stayed
pursuant to section 654. We are thus
presented with the question of whether the consecutive determinate term for
count V should have also been stayed.
A.
The charges and closing argument
In
addition to the four sexual offenses, defendant was separately charged with
three assaultive offenses: count V,
battery causing serious bodily injury (§ 243, subd. (d)); count VII,
assault with intent to commit a felony during commission of a first degree
burglary (§ 220, subd. (b)), and count VIII, assault by means of force
likely to produce great bodily injury (§ 245, subd. (a)(1)).
In
closing argument, as explained ante,
the prosecutor set forth the factual basis to support the charged
offenses. As to count V, battery causing
serious bodily injury, the prosecutor argued defendant committed the offense
when he “willfully and unlawfully touched [C.B.] in a harmful or offensive
manner. She testified to it number
one. Two, you have got the picture, the
big mark here where the fist hit her right here in front of her ear. You have the stipulation that the parties
entered into that there was serious or great bodily injury, and in this case it
was the ruptured eardrum .… The
fact that she was struck she says with a fist, the defendant says it was a
slap.â€
As
to count VII, defendant was charged with assault with intent to commit a felony
during commission of a first degree burglary.
The prosecutor argued the charge was based on defendant’s act of
burglarizing C.B.’s apartment with the intent to commit a rape and/or
sodomy. Defendant broke into the
apartment and performed an act which “by its nature would directly and probably
result in the application of force to a person.
You got that in a number of places.
The digital penetration, that is the application of force for the …
penetration by a foreign object. The two
rapes, the sodomy.†The prosecutor
argued that defendant “obviously was aware of those facts that he is applying
force to her.â€
In
section I, ante, we explained that
the prosecutor relied on defendant’s acts of punching C.B. in the face, and
hitting her with the belt, to support count VIII, assault by means of force
likely to produce great bodily injury (§ 245, subd. (a)(1)).
Defendant
was convicted of count V, battery causing serious bodily injury, and count
VIII, assault by means of force likely to produce great bodily injury. He was found not guilty of count VI,
residential burglary. He was also found
not guilty of count VII, assault with intent to commit a felony during
commission of a first degree burglary, but guilty of the lesser offense of
misdemeanor assault (§ 240).
B.
Sentencing
At
the sentencing hearing, the court extensively reviewed the charges and possible
sentences, and found defendant committed counts I through IV, the unlawful
sexual acts, on separate occasions given the breaks between the four sexual
acts.
“It seems to
the Court that the conduct was certainly an opportunity for [defendant] to
reflect. It shows a break in the sexual
assault. It shows that there was
movement of the victim forced by the defendant.
It shows that he never did lose control over her. However, there were violent acts committed in
between the sexual assaults. And it
shows his significant change in the manner in which the assaults were being
committed.â€
The
court found that counts I through VI, the two rapes, digital penetration, and
sodomy, were subject to mandatory consecutive sentencing since defendant
committed separate and distinct criminal acts on the same victim, he had a
reasonable opportunity between the commission of each sexual assault to reflect
on his actions, and resumed the sexual assaultive behavior.
The
court then turned to the three assaultive offenses: count V, battery causing serious bodily
injury in violation of section 243, subdivision (d); count VIII, assault by
means of force likely to produce great bodily injury in violation of section
245, subdivision (a)(1); and the lesser offense for count VII, misdemeanor
assault in violation of section 240:
“Counts Five and Seven [sic], which are
the [sections] 245 and 243(D)
654, to each other are not eligible for separate punishment because they
involve the same conduct under the same factual scenarios. They’re simply charged in alternative
fashion. However … [section] 243(D) [count V, battery with serious bodily
injury,] is not a [section] 654 application as to the sexual assault. It appears to the Court that the defendant
had a separate intent and objective in committing that violent assault. That his intent was–when he entered–was to harass
and punish the victim for, one, having another male in the apartment, and for
two, not letting him in when he arrived at 3:00 a.m. And that is supported by the jury’s verdict
when they found the [residential burglary] allegations not true. It appears they did not believe [defendant]
entered the apartment with the intent to commit a rape or sexual assault. And it’s also supported by the finding of the
reduction of the sexual assault [in count VII] under [section] 220 during
commission of residential burglary to a simple assault under [section]
240. It appears to the Court that the
motivating factor of the sexual assault was sexual gratification, which was
apparently the purpose of why he went over to the apartment at 3:00 a.m. in the
first place. And that he had a separate and distinct intent when he committed those
crimes, only after punishing the victim for, one having a male there, and two,
not letting him in when he arrived. So
it appears to the Court that the [section] 243(D) [in count V] is a separate
crime for which a separate punishment is appropriate.†(Italics added.)
The
court imposed the upper term of four years for count V, doubled to eight years
because of the second strike. The court
stayed the term imposed for count VIII pursuant to section 654, and imposed a
concurrent term for count VII.
The
prosecutor argued that section 654 did not apply to count V, violation of
section 243, subdivision (d) and count VIII, violation of section 245,
subdivision (a). The court replied:
“[W]hat I found was that the [sections]
245 and 243 [counts VIII and V] were [section] 654 with each other, but that …
[section] 245 was not [subject to section] 654.
[Section] 654 did not apply to it in terms of the sexual assault. And I did sentence separately on the
[section] 243(D). I simply stayed the
sentence on the [section] 245 because it appeared to me that the [section]
243(D) and [section] 245 were simply alternative charging of the same
incident. They weren’t a lesser-included
offense, but it prohibited a sentencing of each. But there was a sentence imposed under
[section] 243(D) in addition to the sentence imposed on the sexual assault.â€
C.
Analysis
“Section 654
precludes multiple punishment where an act or course of conduct violates more
than one criminal statute but a defendant has only a single intent and
objective. [Citation.] In such circumstances, the court must impose
but stay execution of sentence on all of the convictions arising out of the
course of conduct except for the offense with the longest sentence. [Citation.]â€
(People v. McCoy (2012) 208
Cal.App.4th 1333, 1338, italics in original.)
“If,
however, the defendant had multiple or simultaneous objectives, independent of
and not merely incidental to each other, the defendant may be punished for each
violation committed in pursuit of each objective even though the violations
shared common acts or were parts of an otherwise indivisible course of
conduct. [Citation.]†(People v. Cleveland (2001) 87
Cal.App.4th 263, 267-268; People v. Latimer (1993) 5 Cal.4th 1203,
1211-1212.) “Whether a course of
criminal conduct is a divisible transaction which could be punished under more
than one statute within the meaning of section 654 depends on the intent and
objective of the actor.
[Citation.]†(
434, 438.)
factual determination, which will not be reversed on appeal unless unsupported
by the evidence presented at trial.
[Citation.] The factual finding
that there was more than one objective must be supported by substantial
evidence. [Citation.]†(People v. Saffle, supra, 4
Cal.App.4th at p. 438; People v. Hairston
(2009) 174 Cal.App.4th 231, 240.)
While
the court stayed the determinate term imposed for count VIII, assault by means
of force likely to produce great bodily injury, and the People now concede the
concurrent term for misdemeanor assault (the lesser offense for count VII) also
should have been stayed, the question is whether this court should additionally
find that the determinate term for count V, battery causing serious bodily
injury, must be stayed. Defendant
contends that count V should have been stayed because the court found he had
the same intent and objective when he committed the battery as when he committed
the four sexual offenses.
In
People v. Nubla (1999) 74 Cal.App.4th 719, the defendant committed
several acts of violence against his wife, and the sentencing court imposed
multiple sentences for assault and corporal injury on a
spouse. Nubla held that section 654 did not apply because the offenses were
“somewhat analogous to sex offenses in that several similar but separate
stated that just as “each sexual assault may be viewed as
a separately punishable criminal act, notwithstanding that all the offenses
arguably were done to obtain sexual gratification,†(ibid.) because “ ‘ “[n]one of the sex offenses was
committed as a means of committing any other, none facilitated commission of
any other, and none was incidental†to any other,’ †(id. at p. 731) the defendant’s separate assaults
were not done to facilitate each other and were not incidental to each
other. Accordingly, “[t]he trial court
was entitled to conclude that each act was separate for purposes of ...
at p. 731.)
In
this case, there is substantial evidence to support the court’s extensive
findings that defendant had separate intents and objectives when he committed
count V, battery with serious bodily injury, compared to when he committed the
four unlawful sexual offenses. C.B.
testified that defendant repeatedly demanded to know if she had engaged in
sexual relations, presumably with the man who had been in her apartment when
defendant arrived. Defendant demanded
that C.B. have sex with him and repeatedly beat her when she failed to
immediately cooperate. There is
overwhelming evidence to support the trial court’s factual finding that
defendant committed the battery to harass and punish C.B. for being involved
with another man and refusing to let defendant into her apartment at 3:00 a.m.,
separate and apart from his commission of the four unlawful sexual acts.
The
judgment is modified to reflect that the concurrent
sentence imposed as to count VII, misdemeanor assault in violation of section
240 and is stayed pursuant to section 654. As modified, the judgment
is affirmed. The trial court is directed
to send a corrected abstract of judgment
to the Department of Corrections and
Rehabilitation.
Poochigian, J.
citations are to the Penal Code unless otherwise indicated.
