P. v.
Filed 9/28/10 P.
v. Taylor CA2/6
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
GIOVANNI TAYLOR,
Defendant and
Appellant.
2d Crim.
No. B217990
(Super. Ct. No.
YA073134)
(Los
Angeles County)
Giovanni Taylor appeals
a judgment following conviction of making
criminal threats (count 1) and assault by means likely to produce great
bodily injury (count 2). (Pen. Code,
§§ 422, 245, subd. (a)(1).)[1] We affirm.
FACTS
AND PROCEDURAL HISTORY
Mandisa Freeman and
Taylor married in 1998 and divorced three years later. At times they continued their relationship
despite the divorce and now have three children. In 2008, Freeman lived with Taylor and the
children in an Inglewood
apartment. Freeman was then three and
one-half months pregnant.
In the afternoon of September 30, 2008,
Freeman returned home to find Taylor and a woman named Tammy in the living
room. Knowing that Tammy telephoned Taylor
from time to time, Freeman inquired of their relationship. Tammy responded that she and Taylor were "dating
or together." Angered, Freeman
demanded that Tammy leave. Freeman also
informed Taylor
that he did not respect her. Tammy and
Taylor then left the apartment.
Several hours later, Taylor
returned and apologized to Freeman. They
argued, however, because she did not believe his apology was sincere. Taylor
became angry and left the apartment again.
Later that evening, Taylor
returned. When he criticized their
two-year-old daughter, Freeman asked him not to speak to their daughter in that
manner. Taylor
responded "shut up, bitch," that he was "tired of hearing"
Freeman speak, and that he would "cut [her] tongue out of [her]
mouth." Freeman became frightened
of Taylor's
threats.
Taylor
then pushed Freeman with two hands and she fell back. He lunged at her, squeezed her neck, and
attempted to push her to the floor. Taylor
then hit her with a closed fist as though she was "a punching
bag." He struck her in the head,
face, chest, stomach and arms. When the
older children intervened by jumping on Taylor,
Freeman ran into the hallway and grabbed her daughter. She instructed the children to retrieve their
belongings and join her in the car.
Freeman drove to the
police station and reported the assault.
She had a knot on the back of her head and pain in her arm, jaw, and
stomach area. Freeman did not appear to
have visible injuries, however, and police officers did not take photographs of
the areas where she reported that she had been struck. The civilian desk officer at the police
station testified that she felt a lump on Freeman's head, although it was
covered by hair and not visible.
During her police
station interview, Freeman received a telephone call from her best friend,
Brittany Davis. Davis
stated that she had telephoned the apartment and Taylor
informed her that she would never see Freeman again except "in a body bag
on [her] way to [her] funeral." Davis
had telephoned the police station because she believed that Freeman was in
danger.
Freeman became
frightened of Taylor's
threats because he had threatened and assaulted her previously. In 2001, Taylor
threw her onto a sofa and choked and hit her.
He stated: "Fuck you. It's war.
You're on my shit list. Don't let
me catch you on the street, or I'll get you." Family members pulled Taylor
away from Freeman. She reported the
incident to police officers who subsequently arrested Taylor.
Taylor
presented evidence that he was a peaceful and nonviolent person. He also presented testimony from Freeman's
former boyfriend that she solicited her cousins to burglarize his home the day
after he informed her that he was dating another woman.
The jury convicted Taylor
of making criminal threats (count 1) and assault by means likely to produce
great bodily injury (count 2).
(§§ 422, 245, subd. (a)(1).)
The trial court sentenced him to four years eight months imprisonment,
consisting of the upper term of four years for count 2 and a consecutive
eight-month term for count 1. The court
specifically found that section 654 did not apply because the criminal threats
occurred prior to and following the assault.
The court also imposed a $200 restitution fine and a suspended $200
parole revocation restitution fine,
and awarded Taylor
456 days of presentence custody credit.
Taylor appeals and
contends that 1) the trial court erred by not requiring the prosecutor to elect
the act on which the making of criminal threats rested, and 2) section 654
precludes imposition of sentence for making criminal threats (count 1).
DISCUSSION
I.
Taylor
argues that the trial court erred by not requiring the prosecution to select
which of the two criminal threats upon which count 1 rested. He points out that he unsuccessfully
requested the trial court to compel the prosecution to so select in order that
he could prepare his defense accordingly.
Taylor relies upon People v.
Salvato (1991) 234 Cal.App.3d 872, 878, holding that prosecutorial
selection among factual bases for a charged offense protects a defendant's right
to a unanimous jury verdict and his right to be advised of the charges against
him. He asserts that the error is not
harmless beyond a reasonable doubt because he was forced to defend "on
multiple fronts." He adds that a
section 654 argument might prevail with the first criminal threat, but not the
second.
People v. Salvato, supra, 234 Cal.App.3d 872, concerned a defendant
charged in part with one count of making criminal threats. Prosecution evidence established many
criminal threats - some oral, some written, and some by gesture - occurring
over several months. The trial court
refused the defendant's request that the prosecution select which of the many
criminal threats constituted the basis for the charged count. The court instructed with a unanimity
instruction, however.
The reviewing court held
that the trial court committed prejudicial error by not demanding that the
prosecution select among the threats established. (People
v. Salvato, supra, 234 Cal.App.3d
872, 879.) "[W]here several distinct
potentially criminal acts are shown, and only one charged, the defendant is
entitled, at the commencement of trial (or as soon as practically possible), to
a prosecutorial election upon demand. . . . [R]efusal will only be prejudicial if an
election would have made some significant difference in the trial, whether
through the exclusion of evidence, allowing a focused defense, or in some other
respect that materially implicates the right to be advised of the
charges." (Id. at p. 882.)
We conclude that
has not been prejudiced under any standard of review. Salvato committed numerous threatening acts
against the victim, his former wife.
These included many telephone calls, a mimed shooting, sending purchase
receipts for firearms, and mailing letters and newspaper articles over the
course of several months. (
Salvato with notice of each of these acts.
(Ibid.) In contrast, Freeman testified at the
preliminary examination and described the two threats that Taylor
made. Taylor
cross-examined her at the hearing regarding the criminal threats.[2]
Salvato also attempted
to present different defenses to the alleged criminal threats "but the
multiplicity of acts resulted in the kind of unfocused, diffuse and confusing
presentation." (
Here Taylor
argued that the criminal threats and the assault did not occur and that Freeman
fabricated the allegations because she was angry at him. (Counsel argued that "this incident . .
. frankly, didn't happen.") Taylor
also asserted that neither threat was immediate or unconditional because he
held no knife during the first threat and Freeman was at the police station
during the second threat.
Moreover, as
selection is often met by a prosecution motion to amend the information to
charge additional counts. (
rested primarily on Freeman's testimony.
At sentencing, the trial court found that Taylor
had separate intents and objectives when he uttered the criminal threats and
when he assaulted Freeman. (§ 654,
stronger than the other.
Finally, as Taylor
concedes, the trial court instructed with a unanimity instruction that
protected his right to a unanimous jury verdict. (CALCRIM No. 3500.)
II.
Taylor
contends that the trial court erred by not staying sentence on count 1, making
criminal threats, pursuant to section 654.
He asserts that counts 1 and 2 were committed during an indivisible
course of conduct with the single intent and objective of harming Freeman.
Section 654, subdivision
(a) precludes punishment of an act or omission under more than one provision of
law: "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." Section 654
applies not only to a single act or omission, but also to a course of conduct
that violates more than one statute. (
1210, 1214.)
Application of section
654 turns on defendant's intent and objective in violating multiple statutory provisions. (People
v. Britt (2004) 32 Cal.4th 944,
951-952.) If all the criminal offenses
are incident to one objective, the defendant may be punished for only one
offense. (People v. Wynn, supra,
184 Cal.App.4th 1210, 1214-1215.) The
determination whether defendant held more than one objective is a factual one
that must be supported by substantial evidence.
(Id. at p. 1215;
Cal.App.4th 231, 240.) The trial court's
findings regarding a defendant's intent and objective may be explicit or
implicit. (People v. Tarris (2009) 180 Cal.App.4th 612, 626.)
Here the trial court
determined that Taylor
committed counts 1 and 2 with different intents and objectives. Taylor
threatened Freeman before and after the assault with the purpose of instilling
fear for her life; he assaulted her with the purpose of causing physical
injury. Taylor
made one criminal threat (to "cut [her] tongue out of [her] mouth")
prior to assaulting her, and another (to kill her) after he assaulted her and
she fled the apartment. Multiple
punishment is permissible if the defendant entertained multiple independent
criminal objectives. (
1002, 1021-1022 [criminal threats and arson committed with the different
objectives of frightening the victims and destroying their apartment].) Sufficient evidence supports the court's
implicit finding.
The judgment is
affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
COFFEE, J.
>
Drew E.
Edwards, Judge
Superior Court County of Los Angeles
______________________________
A. William Bartz, Jr.,
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, Scott A. Taryle, Supervising
Deputy Attorney General, Stephanie A. Miyoshi, Deputy Attorney General, for
Plaintiff and Respondent.
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[1] All further statutory
references are to the Penal Code.
[2] At the conclusion of the
presentation of evidence at the preliminary examination, the magistrate
inquired as to which criminal threat was the basis for count 1. The prosecutor responded the "body
bag" threat. Taylor had cross-examined Freeman
regarding both criminal threats prior to the prosecutor's statement.
