Filed 8/9/17 P. v. Cervantes CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

IGNACIO CERVANTES,

Defendant and Appellant.
H042978
(Santa Clara County
Super. Ct. No. C1480898)
This appeal presents a single issue: whether Penal Code section 654 required the trial court to stay any future sentence for defendant Ignacio Cervantes’s conviction for making criminal threats based on that conviction being part of an indivisible course of conduct with his other conviction for assault with force likely to cause great bodily injury. The appeal is procedurally unusual because the trial court’s Penal Code section 654 determination occurred when defendant was placed on felony probation and before any sentence was imposed. Because this procedural situation is similar to an appeal from an order granting probation when a trial court imposes a sentence but suspends its execution, we find that the trial court’s Penal Code section 654 determination is reviewable despite being arguably premature.
Defendant assaulted and threatened a housemate, leading to convictions for assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)) and making criminal threats (Pen. Code, § 422). Defendant argues that Penal Code section 654 requires the trial court to stay any future sentence for the criminal threats conviction because the two convictions were part of an indivisible course of conduct during which time defendant harbored only one criminal objective. Because substantial evidence supports the trial court’s decision, we will affirm the judgment.
I. TRIAL COURT PROCEEDINGS
Defendant lived in his mother’s house in San Jose with his mother, his stepfather, defendant’s adult son, and a renter named Armando Galvan.
A. ACCOUNTS OF THE ALTERCATION
The jury heard several accounts of the April 2014 altercation between defendant and Galvan.
1. Galvan’s Testimony
Galvan testified that he arrived home in the afternoon and went to his bedroom to take a nap. The bedroom door was locked. Galvan awoke to a loud noise and saw his bedroom door open. Defendant entered the bedroom and started yelling “something about tools or something.” Defendant proceeded to punch Galvan “[a] lot of times.” Defendant’s mother came into the room, grabbed defendant, and yelled at him to stop. Defendant went to the kitchen.
Galvan heard a noise in the kitchen that sounded like defendant “had some kind of metal object,” which caused Galvan to leave the house through his bedroom window. Defendant stuck his head out the window and yelled “ ‘I’m going to get you’ ” at Galvan five or six times. Galvan also recalled telling the police that defendant said “ ‘I’m going to kill you.’ ” Galvan was afraid that defendant would hurt or kill him. Galvan jumped over an eight-foot-tall fence. Defendant followed Galvan outside and chased him “around the whole neighborhood.” Galvan called 911 while being chased. (Audio recordings of two 911 calls Galvan made that day were admitted into evidence and played for the jury.)
2. Stepfather’s Testimony
Defendant’s stepfather was in a different room when he heard a noise in Galvan’s bedroom. He went to the bedroom and saw defendant punching Galvan. Galvan was also throwing punches, but was “trying to defend himself.” The stepfather testified defendant later explained that he had been upset that night because he thought Galvan had stolen his tools. The stepfather checked the locked storage area where defendant kept his tools and did not see anything missing.
3. Mother’s Testimony
Defendant’s mother testified that she found defendant and Galvan fighting in Galvan’s bedroom. She positioned herself between them to try to get them to stop. Galvan accidentally hit her when he was trying to hit defendant, leaving a bruise. She managed to separate them and led defendant into the kitchen.
Defendant’s mother denied making certain statements during jail telephone calls with defendant, and excerpts from those calls were admitted as both impeachment and substantive evidence. According to the prosecutor’s quotation of those calls, defendant’s mother told defendant: “ ‘If I had not gotten involved, the thing would have been worse. Nacho, you even grabbed -- you even grabbed a knife.’ ” (Nacho is defendant’s nickname.) She also told defendant: “ ‘but you told him, Nacho, I’m going to kill you.’ ”
4. Defendant’s Testimony
Defendant testified that he went to Galvan’s room to confront him about missing tools. Galvan called defendant a liar for accusing him of stealing tools and pushed defendant. Defendant then wrestled Galvan onto the bed. Defendant’s mother came into the bedroom at some point, got between Galvan and defendant, and told them to stop. Defendant complied with his mother’s request and let go of Galvan. When he did so, Galvan “tried to attack” defendant but hit defendant’s mother instead. Defendant got “really upset” about his mother being hit and punched Galvan once in the head. Defendant testified that his mother pulled him out of the bedroom and into the kitchen. He denied threatening Galvan.
B. VERDICT AND SENTENCING
The jury found defendant guilty as charged (one count of assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)), and one count of making criminal threats (Pen. Code, § 422)). The trial court suspended imposition of sentence and placed defendant on three years’ formal probation, including a condition to serve nine months in county jail. At the same hearing, defense counsel asked the court to “find that the two charges are 654 to each other in terms of his exposure.” The court found that Penal Code section 654 did not apply, reasoning that while there is case law “suggest[ing], where there’s an indivisible course of conduct, that charges may be 654 to each other[,] I don’t find that’s the case here.”
II. DISCUSSION
The only issue on appeal is whether substantial evidence supports the trial court’s finding that Penal Code section 654 would not require the trial court to stay sentence for the criminal threats conviction in any future sentencing. As we noted at the outset (and the trial court noted below), the Penal Code section 654 determination here was arguably premature because the trial court did not impose a sentence. But in the similar context of an appeal from an order granting probation and imposing sentence, execution of which is suspended, courts have determined that a defendant must challenge that sentence by immediate appeal. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 [“If the defendant allows the time for appeal to lapse during the probationary period, the sentence becomes final and unappealable.”]; accord People v. Wilcox (2013) 217 Cal.App.4th 618, 624.) Because defendant’s failure to challenge the trial court’s Penal Code section 654 determination by this appeal would risk forfeiting defendant’s ability to do so if and when a sentence is imposed in the future, we will address defendant’s argument.
Penal Code section 654, subdivision (a) provides, in relevant part, that 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.”
A. LEGAL STANDARDS
Multiple crimes will constitute one act or omission under Penal Code section 654 if they are part of the same course of criminal conduct and are committed with the same intent and objective. (People v. Capistrano (2014) 59 Cal.4th 830, 885 (Capistrano).) “It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.” (People v. Harrison (1989) 48 Cal.3d 321, 335.) “While the ‘temporal proximity’ of multiple crimes is not determinative of the applicability of section 654 [citation], it is a relevant consideration in the analysis.” (People v. Evers (1992) 10 Cal.App.4th 588, 603, fn. 10.) “A trial court’s express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence.” (People v. Brents (2012) 53 Cal.4th 599, 618.)
B. SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT’S DECISION
Defendant argues he committed both crimes with a single intent: to harm Galvan. He contends the two crimes occurred in close temporal proximity to each other, such that defendant “had no time to reflect on his conduct and renew his intent to commit another crime.”
Defendant cites Capistrano, supra, 59 Cal.4th 830 to emphasize that the proximity of the crimes is not dispositive. But that case does not help defendant. Capistrano was convicted of, among other things, home invasion robbery and carjacking related to an incident where he and others confronted two victims at gunpoint as the victims pulled into the garage of their home. Capistrano and the others then led the victims into their house, tied them up, and robbed the house. (Id. at p. 841.) Capistrano argued that the carjacking was “part and parcel of a single course of conduct” that began with removing the victims from their cars and ended when Capistrano left the house with the stolen items. (Id. at p. 887.) The Supreme Court disagreed, noting Capistrano was convicted of “two distinct crimes of violence against the victims, robbery and carjacking,” and finding that substantial evidence supported the conclusion that the defendant “harbored separate objectives for each offense and was appropriately punished for both.” (Ibid.) The court reasoned that had Capistrano merely intended to commit a carjacking, he could have done so without taking the victims into their house. Instead, the evidence showed that Capistrano had a second, distinct purpose in robbing the victims. (Ibid.)
The Supreme Court’s reasoning in Capistrano supports the trial court’s decision here. Defendant could have ended the altercation once his mother pulled him into the kitchen. Instead, he returned to Galvan’s room, verbally threatened Galvan multiple times, and followed him outside until the police arrived. The trial court could reasonably conclude that defendant’s objective in the assault was to hurt Galvan, while his separate objective in making threats was to place Galvan in sustained fear for his future safety. Defendant’s argument that “[a]t no time did [defendant’s] intent change during this encounter” is merely one interpretation of the evidence, and we must view the evidence in the light most favorable to the trial court’s decision. (Capistrano, supra, 59 Cal.4th at p. 887.) Substantial evidence supports the trial court’s decision that Penal Code section 654 does not require any future sentence for criminal threats to be stayed.
III. DISPOSITION
The judgment is affirmed.

____________________________________
Grover, J.




WE CONCUR:




____________________________
Rushing, P. J.




____________________________
Premo, J.








H042978 - People v Cervantes