Filed 7/23/26 P. v. Jimenez CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)

THE PEOPLE, C100803
Plaintiff and Respondent,
(Super. Ct. Nos. 23CF00879,
v. 23CF03674, 23CF04886)

ANTHONY JESUS JIMENEZ,
Defendant and Appellant.

Defendant Anthony Jesus Jimenez appeals after he was found guilty and sentenced
in three cases. On appeal, he challenges his conviction in one of those cases, arguing the
court made multiple evidentiary errors and the prosecutor committed prejudicial error by
misstating the burden of proof. Defendant also challenges his sentence, arguing the court
improperly imposed an upper term, a consecutive sentence, and terms on two convictions
that should have been stayed pursuant to Penal Code1 section 654. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was convicted of three crimes in case No. 23CF03674 (stalking case)—
stalking, misdemeanor sexual battery, and corporal injury. The information provided the
convictions were based on defendant’s conduct occurring in September 2021. At trial,
the evidence demonstrated defendant and M.S. were involved in a long-term on-and-off

1 Further undesignated section references are to the Penal Code.

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relationship. While defendant was restrained from contacting M.S., he broke into her
house while under the influence of drugs. When M.S. asked defendant to leave, he
accused her of seeing other men, pinned her on the bed, bit her neck, and pinched her
breast. Defendant then moved down M.S.’s body and bit her pelvic area. M.S. pushed
defendant off her and defendant grabbed a baseball bat M.S. kept nearby due to
defendant’s prior conduct. Defendant hit the walls of the room with the bat before
discarding it and moving towards M.S. M.S. grabbed a heavy flashlight and hit
defendant, he then wrestled it from her, which made M.S. grab the baseball bat.
Defendant left. Defendant then came back. He pinned M.S. to the bed and slapped her
face, leaving a mark.
While M.S. spoke with officers about the incident, defendant texted her, “You are
really doing this right now? I’m going to have a reason why you don’t answer me.… Do
not talk to the cops. You called 911. I literally just heard it on the scanner.” M.S. later
told the officer about text messages defendant had sent her describing her location. At
trial for the stalking case, evidence of defendant’s conduct before and after September
2021 was admitted. For example, in June 2015, defendant came to M.S.’s home, threw
rocks at her window, and pushed her to the ground, breaking her wrist. During this
incident, defendant called M.S. names and also threw rocks at her face. In July 2021,
while defendant was under a restraining order, he went to M.S.’s home and scratched the
rear end of her car. Also in July 2021, while under a restraining order, defendant walked
by M.S.’s house while M.S. was with her daughter outside. In November 2021,
defendant, while under a restraining order, vandalized M.S.’s car, and the next day went
to M.S.’s house and yelled at her before further damaging her car. Defendant later
dissuaded M.S. from testifying in the stalking case, which he was later charged with and
convicted of in case No. 23CF04886 (dissuading a witness case).
After being charged in the stalking case, defendant was released on bail and
ordered to appear. He did not appear, and he was eventually detained and charged with a

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single count of failure to appear in case No. 23CF00879 (failure to appear case). At the
trial for the failure to appear case, the prosecution relied exclusively on documentary
evidence to prove its case. Defense counsel made multiple objections to each exhibit.
Ultimately, the court admitted at the trial for the failure to appear case: (1) a
felony complaint charging defendant with three felony counts committed between July
and November 2021 (felony case); (2) a March 2022 minute order in the felony case
indicating defendant was denied release on his own recognizance and granted bail in the
amount of $225,000; (3) a statement of rights in the felony case that included an
agreement by defendant that he appear at all times and places ordered by the trial court or
risk new charges; (4) a June 2022 information in the felony case charging three felonies;
(5) an October 2022 minute order in the felony case indicating defendant was released on
bail; (6) a January 2023 minute order in the felony case indicating defendant failed to
appear and that his bail was forfeited; (7) a notice produced by the trial court that
defendant’s bail had been forfeited due to his failure to appear for a trial readiness
conference in the felony case; (8) a June 21, 2023 minute order in the felony case
indicating that, while defendant was in custody, he was not able to be transported to court
because “defendant refused transport”; (9) a June 28, 2023 minute order in the felony
case indicating defendant was present for a hearing setting jury trial; and (10) a July 2023
minute order in the failure to appear case indicating defendant acknowledged he was
being charged with a crime and waived a preliminary examination in the matter. The jury
found defendant guilty of failure to appear.
Defendant was sentenced to an aggregate term of nine years for the stalking case,
dissuading a witness case, and failure to appear case. The trial court imposed the upper
term of five years for stalking based on aggravating circumstances that defendant had
three prior felony convictions since 2006, served prior prison terms related to those
convictions, and was unsuccessful on probation or parole, none of which were submitted
to a jury or admitted to by defendant. It then sentenced him to consecutive sentences of

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one-third the midterm for corporal injury (one year four months) and failure to appear
(eight months), and then a consecutive full term of two years for dissuading a witness.
The trial court imposed a concurrent term of one year for the misdemeanor sexual battery
conviction.
Defendant appeals.
DISCUSSION
I
There Was No Evidentiary Error
Defendant raises several issues of evidentiary error, which we review for an abuse
of discretion. (People v. DeHoyos (2013) 57 Cal.4th 79, 131.) “ ‘To establish an abuse
of discretion, defendants must demonstrate that the trial court’s decision was so
erroneous that it “falls outside the bounds of reason.” [Citations.] A merely debatable
ruling cannot be deemed an abuse of discretion. [Citations.] An abuse of discretion will
be “established by ‘a showing the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of
justice.’ ” ’ ” (People v. Johnson (2022) 12 Cal.5th 544, 605-606.)
A
The Trial Court Did Not Err By Admitting The Statement “Defendant
Refused Transport” Contained In The June 21, 2023 Minute Order
Defendant contends the trial court abused its discretion by admitting into evidence
a statement contained in the June 21, 2023 minute order providing “defendant refused
transport” because the statement was hearsay and violated his right to confront witnesses.
The People focus on the trial court taking judicial notice of the minute order, which did
not extend to admitting statements contained in the minute order for the truth. While true
the court granted judicial notice of the minute orders, the distinction between items
admitted into evidence and those given judicial notice was not explained to the jury, and
the prosecutor argued the truth of the contents of the judicially noticed documents during

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closing argument. Further, defense counsel objected to the statement’s inclusion on
relevance, prejudice, and hearsay grounds, noting the statements did not accurately reflect
his recollection. The trial court explicitly overruled the relevance and prejudice
objections, leaving defendant’s hearsay objection unresolved. Given this record, and the
People’s failure to argue forfeiture, we conclude the court impliedly found the statement
“defendant refused transport” was not hearsay and did not violate defendant’s right to
confront witnesses. We further conclude the trial court did not err in doing so.
1
The Statement Is Not Hearsay
For hearsay, the People point to Evidence Code section 1280, concerning records
of a public employee. This hearsay exception applies if (1) the record was made by a
public employee within the scope of official duties; (2) it was made at or near the time of
the act, condition, or event depicted; and (3) the source of information and method and
time of preparation indicate its trustworthiness. (Evid. Code, § 1280.) The parties do not
dispute clerks are public employees required to keep the minutes and records of the court
(Gov. Code, § 69844) or that the minutes were made near the time of the event depicted.
The thrust of defendant’s disagreement as to the applicability of Evidence Code
section 1280 is the final element, that the statement lacked sufficient indicia of
trustworthiness, given defense counsel’s recollection of the event and the clerk’s lack of
personal knowledge regarding the contents of the statement. But the language of
Evidence Code section 1280 does not require the public employee to have personal
knowledge of the contents of the record, only that the source of the information indicates
its trustworthiness. Here, it was not arbitrary or capricious for the trial court to find the
manner of preparation and source of information were sufficiently trustworthy. The
information regarding defendant’s transportation status was communicated in open court
through procedures regularly utilized by the government to transfer inmates to court and
with both parties present and capable of correcting or adding to the record prepared by

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the clerk. To the extent defense counsel remembered the facts concerning defendant’s
nonappearance differently, that is a question as to weight and not admissibility. (See
People v. Morales (2020) 10 Cal.5th 76, 97 [when sufficient knowledge of a subject is
established, the degree of knowledge is a question of weight more than admissibility];
People v. Cook (2007) 40 Cal.4th 1334, 1346 [challenges to quality of scientific testing
are all matters going to weight, not admissibility].) Accordingly, the court did not abuse
its discretion by determining the statement “defendant refused transport” contained in the
June 21, 2023 minute order fell within a hearsay exception.
2
The Statement Did Not Violate Defendant’s Confrontation Right
Defendant also contends the statement’s inclusion violated his right to confront
witnesses because the statement was testimonial in nature. To assess whether a particular
statement was testimonial, we objectively consider all the circumstances to determine
whether the primary purpose of the statement was to create a record for criminal
prosecution. (Ohio v. Clark (2015) 576 U.S. 237, 244-245; see also Davis v. Washington
(2006) 547 U.S. 813, 822 [explaining that statements “are testimonial when the
circumstances objectively indicate … the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution”];
People v. Gallardo (2017) 18 Cal.App.5th 51, 66 [“ ‘the statement must have been given
and taken primarily for the purpose ascribed to testimony—to establish or prove some
past fact for possible use in a criminal trial’ ”].)
Here, the statement was given as part of the administrative process of tracking
defendant’s transportation and appearance in court. The statement was not made for
evidentiary purposes or to build a factual record for use in a criminal trial. Defendant
disagrees, arguing the primary purpose of the statement cannot be merely administrative
because it was made in the context of defendant’s failure to appear case. Not so. The
statement was made in the context of transporting defendant to court for his stalking case.

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Defendant’s failure to appear case, while filed, was not the subject of the proceeding
reflected in the June 21, 2023 minute order and defendant’s appearance would have been
noted by the clerk regardless of the existence of the failure to appear case. Thus, the
court did not err by finding the statement “defendant refused transport” in the June 21,
2023 minute order did not violate defendant’s right to confront witnesses.
B
The Trial Court Did Not Abuse Its Discretion By Finding
Several Court Documents Relevant And Not Unduly Prejudicial
As he did in the trial court, defendant challenges several items of evidence
admitted during his failure to appear trial as being irrelevant or unduly prejudicial. We
disagree with each of these challenges and address them in turn.
The rules of evidence pertaining to defendant’s challenges are well established.
Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is
“evidence … having any tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.” (Evid. Code, § 210.) “The court in
its discretion may exclude evidence if its probative value is substantially outweighed by
the probability that its admission will (a) necessitate undue consumption of time or
(b) create substantial danger of undue prejudice, of confusing the issues, or of misleading
the jury.” (Evid. Code, § 352; see People v. Merriman (2014) 60 Cal.4th 1, 74.)
Defendant first challenges admission of the complaint and information filed in
defendant’s stalking case, i.e., the underlying felony charges supporting his failure to
appear charges. He argues the court should have redacted two of the three felony charges
because it was only necessary for the prosecution to prove defendant was charged with a
single felony. Defendant has not shown an abuse of discretion. The court redacted the
crimes charged for each felony minimizing potential prejudice regarding the underlying
allegations. The fact defendant was charged with more than one felony was probative to
assessing defendant’s motivation to evade court, and listing three unspecified felony

7
charges does not exert undue prejudice on that assessment. Accordingly, the trial court
did not abuse its discretion by admitting the complaint and information from defendant’s
felony case.
Defendant next contends the trial court abused its discretion by admitting into
evidence the March 2022 minute order because it provided defendant was denied release
on his own recognizance and bail was set at $225,000. To defendant, this was unduly
prejudicial because it communicated to the jury that a judge believed defendant was a
flight risk. We again discern no abuse of discretion. The minute order was relevant to
show the timeline of defendant’s case and the fact he was granted bail, which in turn
explained his later release from custody, forfeiture of bail, and denial of bail. Defendant
provides no indication how the amount of bail and the fact defendant was denied release
on his own recognizance invited the jury to rely on the judge’s prior decisions instead of
making its own independent findings. To the contrary, the minute order gave no legal
standards contextualizing the judge’s decisions to grant bail and deny defendant release
on his own recognizance. Accordingly, the trial court did not abuse its discretion by
admitting the March 2022 minute order.
Finally, defendant contends the trial court abused its discretion by admitting the
statement of rights, wherein defendant agreed to appear to all court ordered hearings and
acknowledged failure to do so would constitute a new charge. Defendant argues this
document lacked proper foundation and was unduly prejudicial because defendant’s
knowledge was not an element of failure to appear and created the impermissible
inference that defendant had the propensity to evade court.
As to foundation, there is adequate indicia the statement of rights was signed by
defendant. (See People v. Lucas (1995) 12 Cal.4th 415, 466-467 [proper foundation is
laid when the court is satisfied a preliminary fact was proved by a preponderance of the
evidence].) The statement of rights was a document submitted to the court in defendant’s
case and certified by his counsel. There was no need to further lay foundation for the

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document. As to prejudice, while defendant’s knowledge may not be an element of the
crime of failure to appear, it is probative to whether he failed to appear for the purpose of
evading the process of the court. (§ 1320.5.) Knowing the harsh consequences for
failing to appear tends to prove defendant either had a good reason for doing so or did so
to avoid punishment in the underlying case. Either way, defendant’s acknowledgment of
the statement of rights is relevant. It was further not an abuse of discretion for the trial
court to find this relevance was not outweighed by the risk of undue prejudice. It was not
unreasonable for the court to conclude the jury would not make an adverse inference
about the character of any one defendant from a standardized form informing a defendant
of the consequences of a nonappearance. Nor is it reasonable the jury would infer
defendant had a propensity to evade the court process through the generalized statement.
Accordingly, the trial court did not abuse its discretion by admitting the statement of
rights signed by defendant.
II
There Was No Prosecutorial Error2
During closing argument in defendant’s failure to appear trial, the prosecutor
argued: “[T]here’s this presumption that you get to have [related to] intent.… [¶] …
But the law in this kind of case actually gives you a presumption that if the [d]efendant
did not come back to court within 14 days after the date he was ordered to appear, you all
may presume that it was for the purposes of evading the court process. You can just
presume that. Because he didn’t come back for almost five months. This presumption
only requires 14 days. [¶] So, [m]embers of the [j]ury, you don’t even have to worry

2 Defendant often refers to the prosecutor’s conduct as misconduct. “[T]he term
prosecutorial ‘misconduct’ is somewhat of a misnomer to the extent that it suggests a
prosecutor must act with a culpable state of mind. A more apt description of the
transgression is prosecutorial error.” (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

9
about thinking about the intent of his actions. You can rely on this presumption because
it’s established he was gone for more than 14 days.”
Defendant contends this constituted prosecutorial error because defendant’s willful
failure to appear for over 14 days is not a legal presumption that the failure to appear was
for the purpose of evading the process of the court, but merely an inference the jury is
permitted to draw by statute. (§ 1320.5 [“Willful failure to appear within 14 days of the
date assigned for appearance may be found to have been for the purpose of evading the
process of the court”].) Defendant acknowledges his counsel did not object in the trial
court and consequently raises an ineffective assistance of counsel claim regarding that
failure. We exercise our discretion to review defendant’s claim and conclude it was not
reasonably likely the jury applied the complained of remarks in an erroneous manner.
(People v. Torres (2025) 113 Cal.App.5th 88, 92.)
“ ‘[I]t is improper for the prosecutor to misstate the law generally [citation], and
particularly to attempt to absolve the prosecution from its prima facie obligation to
overcome reasonable doubt on all elements [citation].’ [Citation.] Improper comments
violate the federal Constitution when they constitute a pattern of conduct so egregious
that it infects the trial with such unfairness as to make the conviction a denial of due
process. [Citation.] Improper comments falling short of this test nevertheless constitute
misconduct under state law if they involve use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury. [Citation.] To establish misconduct,
defendant need not show that the prosecutor acted in bad faith. [Citation.] However,
[defendant] does need to ‘show that, “[i]n the context of the whole argument and the
instructions” [citation], there was “a reasonable likelihood the jury understood or applied
the complained-of comments in an improper or erroneous manner.[” ]’ [Citation.] If the
challenged comments, viewed in context, ‘would have been taken by a juror to state or
imply nothing harmful, [then] they obviously cannot be deemed objectionable.’ ”
(People v. Cortez (2016) 63 Cal.4th 101, 130.)

10
 Here, the prosecutor’s statements implied there was a presumption, versus a
permissive inference, of defendant’s intent given the length of his absence from court
process. While the prosecutor used the word presumption, he did not indicate to the jury
that it was required to make such a finding given the length of defendant’s absence.
Further, the jury instructions accurately provided that the jury may, but was not required
to, infer defendant’s nonappearance over 14 days was for the purpose of evading the
process of the court. The jury was also instructed to follow the law as explained by the
court and reject conflicting statements made by attorneys, undermining defendant’s claim
the jury was more likely to believe the prosecutor than the court regarding statements of
law. Taken together, defendant cannot demonstrate a reasonable likelihood the jury
understood or applied the prosecutor’s remarks in an erroneous manner.
III
There Was No Cumulative Error
Defendant argues cumulative error resulted from the combined errors related to his
evidentiary and prosecutorial error claims. Because we concluded there was no error
affiliated with defendant’s evidentiary and prosecutorial error claims, we conclude there
was no cumulative error. (People v. Chatman (2006) 38 Cal.4th 344, 410.)
IV
The Court’s Reliance On Defendant’s Prior Prison Terms And Unsuccessful
Performance On Probation/Parole To Impose An Upper Term Was Harmless
Defendant contends the trial court erred by relying on his prior prison terms and
unsuccessful performance on parole/probation to impose the upper term sentence for
stalking. We agree the court could not have relied on defendant’s prior prison terms and
performance on parole and probation, but conclude the error was harmless.
Recently, in People v. Wiley (2025) 17 Cal.5th 1069 (Wiley), our Supreme Court
held that, under both section 1170 and the Sixth Amendment, “a defendant is entitled to a
jury trial on all aggravating facts, other than the bare fact of a prior conviction and its

11
elements, that expose the defendant to imposition of a sentence more serious than the
statutorily provided midterm.” (Wiley, at p. 1086, italics added, fn. omitted; see id. at
pp. 1081, 1085-1086.) “ ‘[A] judge may “do no more, consistent with the Sixth
Amendment, than determine what crime, with what elements, the defendant was
convicted of.” ’ ” (Wiley, at p. 1081.) A jury, and not a judge, must determine whether a
defendant has performed unsatisfactorily on probation or parole before a court may rely
on that aggravating fact to justify an upper term sentence. (Id. at p. 1085.) Here, the trial
court did more than determine the bare fact of a prior conviction and its elements, and
that constituted error.
The People argue that, even though the trial court erred, the error was harmless
because any rational jury would have found true beyond a reasonable doubt defendant
served a prior prison term related to his prior convictions and was unsuccessful on parole
and probation. We agree.3
“ ‘[A] sentence imposed under ... section 1170[, subdivision ](b) must be reversed
and remanded unless the reviewing court concludes beyond a reasonable doubt that a
jury, applying that same standard, would have found true all of the aggravating facts upon
which the court relied to conclude the upper term was justified, or that those facts were
otherwise proved true in compliance with the current statute.’ ” (Wiley, supra, 17 Cal.5th
at p. 1087.) “Lack of a jury trial is not harmless under [the federal standard] if ‘the
record contains evidence that could rationally lead to a contrary finding’ with respect to
the aggravating fact at issue.” (Ibid.)
One factor the trial court relied on when imposing an upper term sentence for the
stalking case was defendant’s prison terms for his prior stalking, corporal injury, and
drug felony convictions. Defendant’s probation report indicates he served a prison

3 The parties rely on the probation report to determine prejudice. We will do the
same. (See Wiley, supra, 17 Cal.5th at p. 1090, fn. 14.)

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sentence for stalking after his probation for that offense was revoked. Similarly,
defendant was sentenced to a prison term for corporal injury and his felony drug offenses.
Defendant argues this is insufficient to meet the harmless beyond a reasonable doubt
standard because a jury may disagree with the court’s finding. Defendant’s argument
fails because he does not point to contrary evidence presenting an ambiguity as to
whether he served prior prison terms. Thus, the trial court relying on defendant’s prior
prison sentences as an aggravating factor was harmless beyond a reasonable doubt.
As for defendant’s prior performance on parole, probation, and postrelease
community supervision, Wiley provides more specific guidance. (Wiley, supra,
17 Cal.5th at p. 1090.) In that case, there was evidence of the defendant’s performance
on probation in three cases. (Ibid.) In one, he “successfully completed a residential drug
treatment program, obtained his driver’s license, paid all court ordered fines and fees, and
committed no probation violations. In two other cases, [his] performance on probation
was ‘marked by probation violations due to his arrest and conviction of new
misdemeanor and felony law violations.’ Probation was revoked and a prison term was
executed. After his release from prison on postrelease community supervision, [he] was
convicted of a new misdemeanor offense, but ‘was fairly compliant during the remainder
of his supervision term.’ ” (Id. at pp. 1090-1091.)
The People in that case argued that “ ‘[b]ecause committing an offense on
probation is such a clear violation of both the letter and spirit of probation’s strictures, no
rational jury could conclude that a defendant who committed crimes two out of the three
times that he was on formal probation had performed satisfactor[ily] on probation.’ ”
(Wiley, supra, 17 Cal.5th at p. 1091.) Our Supreme Court rejected this argument and
noted that the probation report listed the defendant’s performance on probation as both an
aggravating and mitigating factor, and so the court “[could not] discount the possibility
that either counsel in a contested jury trial might have presented live testimony on this
factor that would have affected the jury’s determination. [Citation.] Nor [could it]

13
discount the possibility that a rational jury could have disagreed as to whether the
[prosecution] had proved that [the defendant’s] overall performance on probation was
unsatisfactory.” (Ibid., italics omitted.) Accordingly, our Supreme Court found the error
was not harmless. (Ibid.)
Our case is not similar to Wiley. Unlike Wiley, there is no evidence in the record
demonstrating defendant ever successfully completed probation, parole, or postrelease
community supervision. Following defendant’s 2006 stalking conviction, defendant
violated probation, his probation was revoked, and he served a prison sentence. He then
violated parole multiple times and was returned to custody to finish his prison sentence.
Following defendant’s felony convictions for corporal injury and a drug offense, he was
sentenced to prison. Upon release, defendant violated postrelease community supervision
three times in six months. Further, between these felony convictions, defendant was
convicted of other drug offenses for which he was given probation. Defendant did not
successfully complete probation for these offenses either.
Defendant contends his drug addiction mitigated his violations such that a jury
could reasonably find his performance was overall successful. We disagree. Defendant’s
argument explains why he was unsuccessful, it does not present evidence of success.
While defendant’s drug use may influence his criminal behavior, the record reflects
consistent and repeated probation/parole violations and drug offenses. In other words,
there is no indication defendant successfully used probation, parole, or postrelease
community supervision as a means of addressing the causes of his criminal behavior.
Accordingly, unlike the court in Wiley, we cannot conclude that defendant could have
presented live testimony on this aggravating factor that would have affected a jury’s
determination. Thus, the trial court’s error was harmless beyond a reasonable doubt.

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 V
Substantial Evidence Supports The Trial Court’s Decision Under Section 654
Defendant raises two sentencing challenges under section 654. We disagree with
both.
A
Applicable Law
Section 654, subdivision (a), prohibits “punish[ment] under more than one
provision” for “[a]n act or omission that is punishable in different ways by different
provisions of law.” Our Supreme Court has long applied section 654 “ ‘ “not only where
there was but one ‘act’ in the ordinary sense … but also where a course of conduct
violated more than one statute and the problem was whether it comprised a divisible
transaction which could be punished under more than one statute within the meaning of
section 654.” ’ ” (People v. Beamon (1973) 8 Cal.3d 625, 637.) “ ‘Whether a course of
criminal conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the actor. If all of the
offenses were incident to one objective, the defendant may be punished for any one of
such offenses but not for more than one.’ ” (People v. Latimer (1993) 5 Cal.4th 1203,
1208, italics omitted.)
Multiple punishments are also permissible where a course of criminal conduct is
divisible in time and “ ‘the offenses are temporally separated in such a way as to afford
the defendant opportunity to reflect and to renew his or her [or their] intent before
committing the next one, thereby aggravating the violation of public security or policy
already undertaken’ ” and creating a “ ‘new risk of harm.’ ” (People v. Gaynor (2019)
42 Cal.App.5th 794, 800, 804; see People v. Peyton (2014) 229 Cal.App.4th 1063, 1080.)
“The question of 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.” (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113.)

15
Generally, “a trial court may base its decision under section 654 on any of the facts that
are in evidence at trial,” even those that may not have been the basis for the jury’s
verdicts. (People v. McCoy (2012) 208 Cal.App.4th 1333, 1340, italics omitted.) We
review the trial court’s express or implied findings for substantial evidence. (People v.
Vasquez (2020) 44 Cal.App.5th 732, 737.) To that end, 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.” (People v. Jones
(2002) 103 Cal.App.4th 1139, 1143.)
B
Section 654 Does Not Apply To The Stalking And Corporal Injury Sentences
Defendant contends he could not be sentenced to both corporal injury and stalking
because his corporal injury was the means by which he accomplished the stalking. Not
so.
The offense of stalking occurs when the defendant “willfully, maliciously, and
repeatedly follows or willfully and maliciously harasses another person and … makes a
credible threat with the intent to place that person in reasonable fear for their safety, or
the safety of their immediate family.” (§ 646.9, subd. (a).) A “ ‘course of conduct’
means two or more acts occurring over a period of time, however short, evidencing a
continuity of purpose.” (§ 646.9, subd. (f).) Corporal injury occurs when a defendant
“willfully inflicts corporal injury resulting in a traumatic condition.” (§ 273.5, subd. (a).)
The record contains ample evidence of stalking apart from defendant’s assaultive
conduct inside M.S.’s home. Defendant texted M.S. about her location, showed up at her
home while under a restraining order, and vandalized her car. He monitored 911 calls
and threatened M.S. after the assault. This was done with the objective of harassing M.S.
and putting her in fear for her safety. (§ 646.9, subd. (a).) On the other hand, defendant’s
conduct of committing corporal injury and sexual battery by breaking into M.S.’s home
and assaulting her, was done with the objective of inflicting injury. (§ 273.5.) These are

16
separate objectives defendant accomplished through divisible conduct. Accordingly, the
court did not err by finding section 654 did not apply to defendant’s stalking and corporal
injury convictions.4
C
Section 654 Does Not Apply To The Corporal Injury And Sexual Battery Convictions
Defendant also contends he could not be sentenced to both corporal injury and
misdemeanor sexual battery because both convictions are based on the same conduct.
Not so.
The evidence demonstrated defendant attacked M.S. by pinching her breasts,
biting her neck, and biting her pelvic area. Defendant then left the home, which provided
an opportunity for reflection. Instead of leaving, defendant reentered M.S.’s home,
pushed her on the bed, and slapped her face, leaving a mark. With his reentry of M.S.’s
home, defendant increased the risk of harm and renewed his criminal purpose, justifying
multiple punishments.
Defendant argues the prosecution should be precluded from bifurcating
defendant’s conduct into two courses of action since it argued to the jury it could rely on
all of M.S.’s injuries when deciding whether defendant committed corporal injury. But
that is not the test under section 654. “[A] trial court may base its decision under
section 654 on any of the facts that are in evidence at trial,” even those that may not have

4 Defendant also argues the trial court erred by failing to impose his corporal injury
sentence concurrent to his stalking sentence. He acknowledges his counsel did not object
on this basis, which consequently forfeits defendant’s claim regarding the adequacy of
the court’s reasons justifying its decision. (People v. Scott (1994) 9 Cal.4th 331, 353 [the
defendant forfeits “claims involving the trial court’s failure to properly make or articulate
its discretionary sentencing choices” by failing to object].) Defendant, however, argues
he did not forfeit his consecutive sentence claim to the extent the resulting sentence was
unauthorized, raising the same argument he raises in this section 654 challenge. Because
we concluded defendant’s section 654 challenge lacks merit, we conclude his consecutive
sentence claim based on the same reasoning also lacks merit.

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been the basis for the jury’s verdicts. (People v. McCoy, supra, 208 Cal.App.4th at
p. 1340, italics omitted.) For the purposes of sentencing under section 654, we review
the trial court’s decision for substantial evidence. (People v. Vasquez, supra,
44 Cal.App.5th at p. 737.) Here, the court impliedly found defendant renewed his
criminal objective between the sexual battery and corporal injury offenses. This finding
is supported by substantial evidence in the record. Accordingly, section 654 did not
apply to defendant’s corporal injury and sexual battery sentences.
DISPOSITION
The judgment is affirmed.

/s/
ROBIE, Acting P. J.

We concur:

/s/
FEINBERG, J.

/s/
WISEMAN, J.*

* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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