P. v. Zupin

Filed 8/23/06 P. v. Zupin CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Daniel Keith Zupin appeals his sentence after pleading no contest to assault with a deadly weapon (Pen. Code,[1] § 245, subd. (a)(1) (count 1)), criminal threats (§ 422, (count 2)), first degree burglary (§ 459, (count 3)) and stalking (§ 646.9, subd. (a), (count 4)). He admitted the special allegations that in committing the offenses in counts 2 and 3 he personally used a dangerous weapon (§ 12022, subd. (b)(1)), and that he suffered a prior strike conviction for a serious felony (§§ 667, subds. (a)(1), (d)(1), (e)(1), 1170.12, subds. (b)(1), (c)(1)). The court imposed an aggregate prison term of 20 years and 8 months.

We conclude 1) the court erred by not staying the sentence on count 2 (§ 654) as this crime was part of an indivisible course of conduct committed for a single goal and 2) the trial court must correct the abstract of judgment as it does not accurately reflect the other sentences the court imposed. In all other respects the judgment is affirmed.

FACTS

Chrisann Schultz, Zupin's former girlfriend, testified that their live-in relationship ended when Zupin moved out. She did not want to see him again. Zupin left threatening telephone messages on her answering machine. He said, "I'm watching you," and "[D]on't let me see you holding hands with anybody."

On August 9, 2004, Zupin entered her home, put a gun to her head and said," I told you if you ever broke up with me I'd come back and kill you and I'm here. [I]f I can't have you nobody can." He left her residence after Schultz said, "I don't hate you . . . . I'll call you later." He was later arrested. During a search, a Sheriff's deputy found a BB gun, which looked like a semi-automatic handgun, in Zupin's back pack.

The information alleged that the offenses in counts 1 through 3 (assault, criminal threats and residential burglary) all occurred on one day, August 9, 2004. Count 4 (stalking) occurred over a period of seven months between January 1, 2004, and August 10, 2004.

At the sentencing hearing, the court said it would use count 3 (first degree residential burglary) as the principal term. It imposed the upper term of six years and doubled it because of the prior strike. It imposed a one-year consecutive term for the use of a deadly weapon enhancement and a five-year consecutive term for the prior serious felony conviction. On count 4 (stalking) it imposed a consecutive 16-month sentence.

The court said count 1 (assault with personal use of a deadly weapon) would be stayed pursuant to section 654. On count 2 (criminal threats) it imposed a 16-month consecutive sentence.

The abstract of judgment, however, does not reflect that the sentence on count 1 was stayed pursuant to section 654. It states that for count 4 the court imposed an eight-year sentence.

DISCUSSION

I. The Sentences on Counts 1 and 2

Zupin and the Attorney General agree 1) that the trial court correctly stayed the sentence on count 1 (assault), but erred by not correcting the abstract of judgment to reflect that stay, and 2) that the court erred by not staying the sentence on count 2 (criminal threats). They are correct.

Section 654 states, in relevant 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." This section "precludes multiple punishments for a single act or an indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294.) Where two or more offenses are committed together with a single intent and objective, the defendant may be punished for one, but sentencing for the others must be stayed. (Ibid.; People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Diaz (1967) 66 Cal.2d 801, 807.)

Zupin and the Attorney General correctly note that when the court orally pronounced judgment, it said "the factual nature of this crime [count 1] would indicate that [a] 654 stay would be appropriate." But the abstract of judgment does not reflect that the sentence on count 1 was stayed. "An abstract of judgment . . . does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize. [Citation.]" (People v. Mitchell (2001) 26 Cal.4th 181, 185.) The abstract must be corrected to state that the sentence on count 1 is stayed. (Ibid.)

The Attorney General agrees with Zupin that the court erred by not staying the sentence on count 2. He notes that counts 1 through 3 (assault, criminal threats and burglary), which were committed together, "shared a single criminal objective: [Zupin's] intent to attack [Schultz.]" The trial court imposed a consecutive 16-month sentence for count 2. But it noted that it was part of a sequence of events.

Schultz's uncontradicted testimony shows that Zupin had a single goal when he committed these offenses. The entry into the home, the use of the gun and the threat were the means to achieve his plan to terrorize Schultz for rejecting him. They occurred at the same time, were part of a sequence of events and an indivisible course of conduct. There is no evidence that Zupin had a separate goal to commit each offense for reasons not stemming from his anger and infatuation with Schultz. We agree with Zupin and the Attorney General that it was illogical for the trial court to have stayed count 1, but not to also stay count 2, the connected offense in this sequence of events. The sentence on count 2 must be stayed. (People v. Radil (1977) 76 Cal.App.3d 702, 713; People v. Diaz, supra, 66 Cal.2d at p. 807.)

II. Other Mistakes in the Abstract of Judgment

The Attorney General correctly notes that there are other mistakes in the abstract of judgment. Among other things, it erroneously states that Zupin was sentenced to eight years in prison on count 4 and that the court selected one-third the upper term, instead of one-third the mid-term. The trial court must correct the abstract so that it is completely consistent with the judgment. (People v. Mitchell, supra, 26 Cal.4th at p. 185.)

The sentence on count 2 is vacated and is ordered stayed pursuant to section 654. The matter is remanded to the trial court to 1) amend the abstract of judgment to reflect that the sentences on counts 1 and 2 are stayed, and 2) to correct the abstract so that it is otherwise consistent with the judgment and forward the modified abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Timothy J. Staffel, Judge

Superior Court County of Santa Barbara

______________________________

Larry S. Dushkes, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Victoria B. Wilson, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code.