P. v. Torres
Filed 1/16/13 P. v. Torres
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
GERARD JAMES TORRES,
Defendant
and Appellant.
E054964
(Super.Ct.No.
FVI1100239)
OPINION
APPEAL from the Superior Court of
County. Lorenzo R.
Balderrama, Judge. Affirmed.
James R. Bostwick, Jr., 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, A. Natasha Cortina and Ronald A. Jakob, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant and appellant Gerard James
Torres was convicted of the offenses of criminal
threats (Pen. Code, § 422, count 1),
cohabitant (§ 273.5, subd. (a), count 2), and
(§ 236, count 3). The trial court
sentenced him to three years for the corporal injury conviction (count 2), and
imposed concurrent two-year terms for the criminal threats (count 1) and false
imprisonment (count 3) convictions.
The sole issue defendant raises on
appeal is that the trial court should have stayed the two-year concurrent terms
for counts 1 and 2 under section 654. We
disagree and affirm.
FACTS
The victim had moved into
defendant’s home in Helendale when she was pregnant with their child. She was 21 years old at the time of trial,
and defendant was 13 years older than her.
Their son was born in July 2010.
On January 24 or 25, 2011, after he
returned home from a training assignment, defendant discovered by reading the
victim’s emails that she had been cheating on him while he had been away. That evening, he ordered the victim to
demonstrate the sexual positions she engaged in with the other man, and he
would kick her if he did not believe her.
She complied, and defendant kicked her in the groin, legs, and sides,
insisting that she was lying to him.
The victim pleaded with defendant to
stop beating her, but he told her to be quiet so no one would hear. Throughout the night, defendant continued to
ask her questions about her sexual positions with the other man. At one point, defendant wrapped his arm around
the victim’s neck, placing her in a choke hold, while hitting her in the
abdomen with the other hand. The victim
blacked out and her next recollection was that she had collapsed and could not
move her lower body. After he released
her neck, defendant told the victim, “I would have killed you if I held on for
three more seconds. Next time I will
have no problem holding on for three more seconds.â€
Defendant called for an ambulance,
and the paramedics transported the victim to the hospital. She apparently told the paramedics that she
had blacked out during sexual asphyxiation, although she testified at trial she
did not recall making this statement.
She said she hit her hip on a counter to explain the bruise on her hip
to the hospital personnel. She said she
was afraid of defendant and was unsure what would happen if she told the truth.
When they returned home, the victim
tried to resume a regular routine but they began to argue again. Defendant told her to put the baby in his
crib and he then applied another choke hold on her, grabbed her by the hair,
and flipped her over his shoulder. She
fell, hitting one side of her body on a box that was on the floor. He beat her until her glasses fell off. To protect herself, she curled into a ball
and tried to use her legs to kick him away.
Eventually she picked up her son and walked out of the room.
Later, defendant told her that they
had appointments, and they caught the bus to Victorville. As they were walking to the bus stop, the
victim was staggering and felt like she was going to pass out. A deputy sheriff stopped and asked what the
problem was when he saw the victim lying down at the bus stop. He called for an ambulance, and the victim
was taken to the same hospital she had been to earlier that day. Defendant took a bus and met her at the
hospital. Again, she did not ask for
help because she was afraid of defendant.
After receiving fluids for
dehydration, the victim was released.
She, defendant, and their baby rode the bus back home. Defendant again demanded that the victim
demonstrate the sex acts she had performed with the other man. He then forced her to have sex with him, but
became angry because he said that she could not pleasure him as she did the other
man. She turned her back to defendant
and went to sleep. She later woke up
because defendant began hitting her on her back. She asked him to stop, curled up into a ball
and lay awake the rest of the night because she was afraid to fall asleep
again.
The victim does not recall being hit
on the third day, but defendant kept possession of her cell phone. She did not try to leave the house because
she did not want to make matters worse.
If she received a text message, defendant made her read it and her reply
to him. He made her stay in the same
room with him or within “earshot.â€
The morning of the fourth day,
defendant still had the victim’s phone.
He demanded that she give him her passwords to all her Internet
accounts. Defendant was looking through
all of her accounts on the computer when the victim’s sister called her. When he was in the room, the victim told her
sister everything was fine, but she walked into the laundry room and told her
sister to have their mother call the police.
Her mother then called; the victim was able to go outside and tell her
mother she was terrified. Her mother
assured her that the police would be there and that she should tell them
everything that happened.
The victim admitted she lied
initially when the deputy sheriff asked her about her black eye. She said that defendant had tossed an orange
to her and she missed catching it. She
explained that she told them this story because she was afraid that if
defendant was not arrested, he would be angry with her if she told the police
that he had been beating her.
Deputy Medeiros testified that the victim was shaking and was
distraught when he first talked to her.
He was skeptical of the story about the orange and asked her about the
bruise on her jaw line. When he told her
that defendant was going to be arrested anyway for outstanding warrants, her
demeanor changed. She started crying and
told him about the beatings. She showed
Deputy Medeiros the bruises on her body, which he photographed.
DISCUSSION
Defendant contends that the
concurrent terms for counts 1 and 3 should have been stayed pursuant to section
654 because the offenses were all committed to accomplish a single criminal
objective—to physically punish or harm the victim for her infidelity.
Section 654, subdivision (a),
provides in part: “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
precludes multiple punishment not only for a single act, but also for an
indivisible course of conduct. (
294; People v. Tarris (2009) 180
Cal.App.4th 612, 626.)
Two tests have been applied to
determine whether section 654 has been violated. The first test examines whether the offenses
arise out of a single act. (
Cal.App.3d 1371, 1375, citing Neal v.
State of California (1960) 55 Cal.2d 11, 18, fn. 1.) The other test applies where a course of
conduct violates more than one statute and comprises an indivisible
transaction. (Gbadebo-Soda, at p. 1375.)
Whether offenses are “indivisible†for these purposes is determined by
the defendant’s intent and objective. (
objective, the defendant may be punished for any one such offense, but not for
more than one. (Ibid.; see also People v.
Cleveland (2001) 87 Cal.App.4th 263, 267.)
Whether the defendant harbored more than one objective in committing
multiple offenses is a factual question.
“The question whether section 654 is factually applicable to a given
series of offenses is for the trial court, and the law gives the trial court
broad latitude in making this determination.
Its findings on this question must be upheld on appeal if there is any
substantial evidence to support them.†(
1308, 1312.)
It is undisputed that the prolonged corporal abuse of the victim was
inflicted as punishment for her infidelity.
The People argue that the threat made to her after the choke hold that
the “next time†he would hold on for three more seconds evidenced an objective
to deter the victim from committing acts of infidelity in the future. This is not an unreasonable
interpretation. “ ‘We must “view
the evidence in a light most favorable to the respondent and presume in support
of the [sentencing] order the existence of every fact the trier could
reasonably deduce from the evidence.†’ †(People
v. Hutchins, supra,
In addition, we note that the prosecution relied on two other
threats to support this charge. It noted
that the victim had testified that on at least one occasion defendant told her
that he would kill her if she called the police. Yet another threat was that he would find her
and the baby and kill her if the victim left him. Either threat was a warning for the victim
not to do a specific act in the future and was clearly intended to prevent such
conduct, either reporting to the police or leaving defendant. Thus, no matter which act or acts the jury
found to constitute the criminal threat(s),
the conclusion that the threat was motivated by an objective distinct from the
intent to punish the victim for her infidelity.
With respect to the false imprisonment, the People assert that the
offense continued well after all the acts of corporal abuse ceased. Defendant disputes this claim. We find that there is substantial evidence
that defendant’s control over the victim’s movements continued on the third and
fourth day, and the victim testified that she did not remember that he hit her
on those days. In any case, we believe
that it can reasonably be inferred from the evidence that both during the
period that the abuse took place and afterward defendant had multiple
objectives in controlling the victim’s movements and communications: to prevent her from contacting the police,
from leaving him, and from having further communications with other men.
As noted above, the jury was instructed that they were required to
agree unanimously on which act or acts were the bases for finding defendant
guilty of each of the charged offenses.
Although the jury was not required to make a specific factual finding as
to which act or acts constituted either the criminal threats or the false
imprisonment, section 654 would not apply to require a stay with respect to any
of the possible acts on which the jury could have relied to convict on those
counts. Moreover, the concurrent
sentences could not have violated constitutional precepts under
DISPOSITION
In sum, viewing the evidence in the light most favorable to the
judgment, we conclude that there was substantial
evidence showing defendant had additional and distinct objectives in
committing the offenses of criminal threats and false imprisonment. Accordingly, section 654 did not bar separate
concurrent sentences for his conviction on those counts.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
RAMIREZ
P. J.
RICHLI
J.
the Penal Code unless otherwise stated.
given the unanimity instruction that they all had to agree on the act
constituting the offense, and the prosecution reiterated this point in its
closing argument.
