P. v Themins
Filed 7/27/12 P. v Themins CA4/2
NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD SCOTT
THEMINS,
Defendant and Appellant.
E053886
(Super.Ct.No. BAF10000142)
OPINION
APPEAL
from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed with directions.
Reed
Webb, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and
Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant
Richard Scott Themins engaged in domestic violence against his girlfriend
during their tumultuous relationship. A
jury convicted defendant of eight offenses arising from two incidents.
For the events occurring on December 14, 2009, defendant was convicted of four counts: witness dissuasion (§ 136.1, subd. (b)(1));
unlawfully taking a vehicle (Veh. Code, § 10851; petty theft (§ 484, subd.
(a)); and misdemeanor battery (§ 243, subd. (e)(1).) For the events occurring on July 27, 2010, defendant was convicted of four additional
counts: witness dissuasion (§ 136.1,
subd. (c)(1); false imprisonment (§ 236); misdemeanor battery (§ 243, subd.
(e)(1)); and misdemeanor violation of a protective order (§ 166, subd. (c)(1).)
Defendant was also subject
to enhancements under section 667.5, subdivision (b), for committing counts 5
and 6 while charges were pending on counts 1 through 4, and under section
12022.1 for having served a prior prison term on embezzlement and not remaining
free from custody for a five-year period.
The court sentenced
defendant to a total prison term of 11 years four months, with custody and
conduct credits.
On appeal, defendant argues
his due process rights were violated by allowing the victim to use a fictitious
name and because one of the jurors was sleeping during trial. Additionally, defendant argues his conviction
on count 3 for petty theft should be reversed because there was insufficient
evidence of intent. Finally, defendant
asserts the trial court committed errors in sentencing on counts 1 and 5 for
witness dissuasion.
The People agree counts 1
and 5 should be remanded for resentencing.
Subject to that modification, we affirm the judgment.
II
FACTUAL BACKGROUND
A. December 14, 2009
Jane
Doe lived in Banning in a gated community as the residential caretaker for an
elderly man named Al. Jane Doe had an
intermittent relationship with defendant.
On December 14, 2009, defendant came to Jane Doe’s home and entered through
the garage. When Jane Doe told defendant
to get out, defendant became angry and restrained her in a bedroom, to prevent
her from having access to a phone.
Defendant held Jane Doe down on the bed, grabbed her by the arms and
neck, and pushed her. Jane Doe escaped
and ran into the kitchen. Defendant
followed her and grabbed her neck.
During their struggle, her elbow was cut by a blue drinking glass. Jane Doe told defendant again to “Get the
hell out of here.”
Defendant warned Jane Doe
she could not call the police or 911.
Defendant took Jane Doe’s car from the garage and left, taking with him
a cordless house phone and Jane Doe’s purse containing her cell phone and car
keys.
Meanwhile, Jane Doe sought help at the guard
station at the entrance to the residential community. Several days later, Jane Doe recovered her
car and other personal property from a grocery store parking lot. Jane Doe had not given defendant permission
to use her car.
A Banning police officer
contacted Jane Doe at the guard shack.
The officer observed she was crying hysterically and bleeding badly from
her elbow. A red mark was on her
neck. Jane Doe did not appear
intoxicated. The officer found a broken
glass and spattered blood in the kitchen and living room of the house.
On
cross-examination, Jane Doe admitted that, between December 2009 and July 2010,
she had consented to defendant continuing to visit her. Jane Doe denied she was drinking vodka on December 14, 2009. She agreed
she had recovered her car from a parking lot near the entry gate.
B. The Criminal Protective Order
The
parties stipulated that, on May 10, 2010, the court granted a
criminal protective order prohibiting defendant from having negative contact
with Jane Doe and from trying to dissuade her from attending a hearing,
testifying, or making a report to law enforcement.
C. July 2010
On July 27, 2010, defendant again came uninvited to Jane Doe’s
bedroom. Defendant said he wanted to get
some sleep and he wanted Jane Doe to make him some dinner. After Jane Doe told defendant to leave, she
went into the kitchen where she had some Arby’s sandwiches she had purchased
for Al. Defendant was upset and
proceeded to smash the bag of sandwiches.
Defendant said Jane Doe could not leave or call the police. Defendant grabbed Jane Doe by the arms, neck,
and face, pushed her into the bedroom, and held her down on the bed. Defendant made threatening statements to Jane
Doe like “he could rip my face off,” he was losing control, and he would have
his friends “kick your ass.” Defendant
bruised her arm. Because defendant would
not allow her to leave, Jane Doe remained in the room until defendant fell
asleep when Jane Doe was able to leave with her dog and call the police.
A second Banning police
officer contacted Jane Doe and defendant on July
28, 2010, about defendant violating the protective order. Jane Doe appeared calm and sober. Her clothes were slightly disheveled and her
arm bore a small bruise about the size of a quarter, consistent with her being
grabbed or punched.
On cross-examination, Jane
Doe admitted that defendant had come to the house on July 26, 2010, and left
when she called the police but she said he had spent the night sleeping in a
hammock in the backyard. Defendant was
still at the house when Jane Doe returned on the afternoon of July 27, 2010,
after taking Al to the doctor.
D. Defendant’s Testimony
Defendant
admitted he was convicted of felony embezzlement in May 2004 and vehicle theft
in September 2007.
Defendant often spent the night with Jane Doe
in Banning. Defendant claimed Jane Doe
had a drinking problem. Defendant came
to Jane Doe’s residence on December 13, 2009, and parked his truck in an
Albertson’s parking lot near the gated entrance. That day he performed some household chores
with Jane Doe. Defendant spent the night
of December 13, 2009, and made some breakfast in the morning while Jane Doe
slept until the afternoon. After Jane
Doe woke up, she got mad at defendant and yelled at him to leave. She poured herself some vodka in a blue
glass. When defendant reached over to
hug her, she made a movement that broke the glass and cut herself. While Jane Doe yelled at defendant, he got a
towel and tried to persuade her to go to the emergency room. After she threw her car keys at him,
defendant took the keys and drove her car to where his truck was parked. He parked her car and locked it with the keys
under the seat. He did not know her
purse and cell phone were in the car.
In
July 2010, defendant stayed with Jane Doe and assisted with caring for Al. About 7:00 or 8 p.m. on July 27, 2010,
defendant watched television with Jane Doe in her bedroom until they had an
argument. He did not restrain her or threaten
her. Instead, he went to sleep. When he woke up the next morning, she told
him he should hurry up and leave.
Defendant started to leave through the garage when a police officer
arrived.
III
JANE DOE’S FICTITIOUS NAME
Jane
Doe testified using a fictitious name.
Defendant contends Jane Doe’s anonymity caused him prejudice because of
the implication that defendant constituted a threat to her and because it
raised the specter of a “lurid sexual offense” that the court was withholding
from the jury.
Defendant
did not object at trial to the use of a fictitious name, forfeiting any such
claim on appeal. (People v. Monterroso (2004) 34 Cal.4th 743, 759.) Furthermore, the record does not support
defendant’s claim of error because the defense knew the true name of the victim
and her address, and was allowed complete discovery. Even if the statute cited by defendant,
section 293.5, applies in cases involving victims of sex offenses–and not in
case involving victims of domestic violence (see People v. Ramirez (1997) 55 Cal.App.4th 47, 53)–defendant’s right
to confront and cross-examine the victim was not violated. The privacy interest of the victim and the
resulting state interest in facilitating the reporting of domestic violence
offenses against the minimal intrusion on an accused’s nonabsolute right of
confrontation, is not constitutionally infirm, nor did its application violate
defendant’s confrontation and cross-examination rights. (Id. at
p. 57; see Alvarado v. Superior Court
(2000) 23 Cal.4th 1121, 1134-1136, 1151-1152.)
In summary, using a fictitious name for the victim did not impair
defendant’s right to due process and a fair trial.
IV
THE SLEEPING JUROR
One
of the jurors, TJ01, had trouble staying awake during opening statements and at
one point during the examination of defendant.
The court interviewed TJ01, asking whether she had a sleeping
disorder. TJ01 admitted she fell asleep
easily and was having problems staying awake because she had slept poorly the
night before. TJ01 maintained she was
not asleep but “fighting it.” Also she
was irritated “with the whole situation.”
In spite of defense counsel’s objections, the court observed that TJ01
had been nodding off but, based on her statement, the court found “it appears
to be that she heard all of the evidence.”
The court offered additional detailed reasons for finding the juror had
heard the evidence and the court denied defendant’s motion for mistrial. At the end of the trial, the court observed
that TJ01 had become more attentive and defense counsel agreed.
“The trial court has the
authority to discharge jurors for good cause, including sleeping during
trial.” (People v. Bonilla (2007) 41 Cal.4th 313, 350, citing
1229, 1348-1349; People v. Johnson
(1993) 6 Cal.4th 1, 21.) “When the trial
court receives notice that such cause may exist, it has an affirmative
obligation to investigate.
[Citations.] Both the scope of
any investigation and the ultimate decision whether to discharge a given juror
are committed to the sound discretion of the trial court. [Citation.]”
(Bonilla, at p. 350
Here the court based its
finding on the juror’s statements and its own close scrutiny of the juror’s
conduct. (Bradford, supra, 15 Cal.4th at p. 1349; People v. DeSantis (1992) 2 Cal.4th 1198, 1233-1234.) There was little or no evidence that TJ01 had
actually fallen asleep during the presentation of material evidence even if she
was asleep during some part of opening statements. (Bradford,
at p. 1349.) We conclude the trial
court fulfilled its obligation to investigate and acted within its sound
discretion when it refused to discharge TJO1 or to grant a mistrial.
V
COUNT 3 FOR PETTY THEFT
Defendant’s
conviction on count 3 for petty theft (for which he received an eight-month
sentence) was based on defendant taking Jane Doe’s purse and cell phone and the
cordless house telephones with him when he drove away in her car on December
14, 2009. The statutory definition of
theft is: “Every person who shall
feloniously steal, take, carry, lead, or drive away the personal property of
another . . . is guilty of theft.”
(§ 484, subd. (a).)
The
court instructed the jury based on People
v. Avery (2002) 27 Cal.4th 49, 58, and CALCRIM No. 1800 (italics
added): “3. When
the defendant took the property he intended to deprive the owner of it
permanently or to remove it from the
owner’s possession for so extended a period of time that the owner would be
deprived of a major portion of the value or enjoyment of the property;
“AND
“4. The defendant moved the property, even a
small distance, and kept it for any period of time, however brief.
“For petty theft, the
property taken can be of any value, no matter how slight.”
The italicized language is
most significant because, in this instance, when defendant took Jane Doe’s
purse and several telephones, he deprived her of the ability to contact the
police and report on defendant’s conduct.
Under these circumstances, defendant clearly intended to restrict
temporarily Jane Doe’s value and enjoyment of her property at a time when its
use was most important to her. The
evidence also supports a reasonable inference that defendant may have intended
to deprive Jane Doe of her property permanently. By abandoning Jane Doe’s car and possessions
in a parking lot, defendant created a risk that the car might be towed or stolen
and Jane Doe might never recover her property.
Based on the appropriately
deferential standard of review, we hold there is substantial evidence in the
record for the jury to find defendant guilty beyond a reasonable doubt on count
3 for petty theft. (People v. Chatman (2006) 38 Cal.4th 344, 389; People v. Shrier (2010) 190 Cal.App.4th 400, 412;
Cal.App.4th 1567, 1573.)
VI
SENTENCING
We
agree with the parties that the trial court incorrectly imposed full
consecutive terms on counts 1 and 5 for dissuasion of witnesses under section
1170.15. Section 1170.15 does not apply
because counts 1 and 5 are related to defendant’s acts of misdemeanor battery
not to any felony offenses. (
664, 669-670.) The matter must be
remanded for resentencing on these counts.
The
court also imposed a three-year sentence on the principal count of count 2 for
taking a vehicle. Defendant argues the
court erred under section 654 when it did not stay sentences on count 1 for
witness dissuasion, count 3 for theft, count 4 for misdemeanor battery, count 6
for false imprisonment, and count 7 for misdemeanor battery because the conduct
in all those counts related to the same conduct of defendant, who was already
on probation, trying to prevent Jane Doe from calling the police. Respondent counters that the counts involved
different intents and objectives and the trial court properly imposed
consecutive sentences on counts 1, 3, and 6 and concurrent sentences on counts 4
and 7.
The general principles for
the application of section 654 are set forth in People v. Jones (2002) 103 Cal.App.4th 1139, 1143-1144:
“Section 654, subdivision
(a), provides in pertinent part, ‘[a]n 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 therefore
“‘precludes multiple punishment for a single act or for a course of conduct
comprising indivisible acts. ‘Whether a
course of criminal conduct is divisible . . . depends on the intent and
objective of the actor.’
[Citations.] ‘[I]f all the
offenses were merely incidental to, or were the means of accomplishing or
facilitating one objective, defendant may be found to have harbored a single
intent and therefore may be punished only once.’ [Citation.]”
[Citation.]’ [Citations.] However, if the defendant harbored ‘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 share common acts or were parts of an
otherwise indivisible course of conduct.
[Citation.]’ [Citations.]
“Whether section 654 applies
in a given case is a question of fact for the trial court, which is vested with
broad latitude in making its determination.
[Citations.] Its findings will
not be reversed on appeal if there is any substantial evidence to support
them. [Citations.] 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.]”
Here defendant’s
altercations with Jane Doe occurred on two occasions during which defendant’s
actions were divisible by intent and objective.
On December 14, 2009, defendant’s conduct escalated as he battered Jane Doe
first in the bedroom and then in the kitchen.
His acts were segregated by location and by periods of time affording
him an opportunity to reflect. Finally,
instead of getting help for Jane Doe after her elbow was injured, defendant
took her telephones and her purse and drove away in her car. Similarly, on July 27 and 28, 2010, defendant
first battered Jane Doe, then threatened her and compelled her to stay in the
bedroom with him all night. Each time
defendant appeared uninvited at Jane Doe’s residence, he reacted violently but
somewhat differently. Throughout these
episodes he had time to reflect and alter his behavior instead of committing
additional crimes. Substantial evidence
supports a finding that defendant committed a series of divisible acts with
multiple intents and objectives on both occasions. (People
v. Byrd (2011) 194 Cal.App.4th 88, 102, fn. 9.) Under these circumstances, section 654 does
not operate.
VII
DISPOSITION
The convictions are
affirmed. The matter is remanded for
resentencing. Following resentencing,
the trial court shall amend the abstract of judgment and forward a certified
copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
RICHLI
J.
name="_ftn1" title=""> [1] All
statutory references are to the Penal Code unless stated otherwise.
