P. v. Dexter
Filed 9/27/06 P. v. Dexter CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. SAMUEL LEE DEXTER, Defendant and Appellant. | E039469 (Super.Ct.No. RIF124171) OPINION |
APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge. Affirmed in part, reversed in part and remanded for resentencing.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.
Defendant appeals from his conviction and sentence for assault, torture and other offenses. We affirm the judgment but reverse the sentence in part and remand for resentencing.
PROCEDURAL HISTORY
A jury found defendant Samuel Lee Dexter guilty of criminal threats (Pen. Code, § 422),[1] false imprisonment by violence or menace (§ 236), dissuading a witness (§ 136.1, subd. (c)(1)), torture (§ 206) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury found that defendant personally inflicted great bodily injury in the commission of the assault. (§ 12022.7, subd. (a).) It acquitted defendant on counts of attempted murder (§§ 664, 187, subd. (a)) and of possession and possession for sale of methamphetamine (Health & Saf. Code, §§ 11350, 11378). Defendant admitted allegations that he had served four prior prison terms and had suffered one prior serious felony conviction and one strike prior. (§§ 667, subds. (a), (c)-(e), 667.5, subd. (b), 1170.12, subds. (a)-(c).) The court dismissed one prison prior when the parties stipulated that the same prior had been alleged twice.
The court imposed a determinate term of 16 years on all counts and enhancements excluding the torture count. On that count, the court imposed a life term, doubled to two consecutive life terms, to run consecutive to the determinate term.
Defendant filed a timely notice of appeal.
FACTUAL HISTORY
Defendant had been in a dating relationship with Rebecca Aul for about three months. She resided in the same condominium complex and occasionally stayed at his condominium. On June 6, 2005, Aul was at defendant’s condominium planning to prepare dinner for the two of them. A friend of hers, “Jimbo,” called on her cell phone asking if he could come over. Aul told him he could not come over because defendant did not like her to have visitors. Aul described defendant as a jealous and controlling person who liked to dictate her activities.
Despite Aul’s request that he stay away, Jimbo came to defendant’s condominium. Aul asked defendant if Jimbo could come in. Defendant refused, and told Aul that she was “disrespecting” him by speaking to another man or inviting a man to defendant’s home.
Aul went outside and spoke to Jimbo for about 15 minutes. When she went back inside, she spoke to defendant, who was upset. She ignored him and returned to the kitchen to resume preparing dinner. Defendant followed her into the kitchen and argued with her about how disrespectful she was. He threw a bottle of bubble bath against the kitchen wall. He then called her into his office. After haranguing her further about Jimbo’s visit, defendant then choked Aul, causing her to lose consciousness. When she regained consciousness, apparently within a few minutes, defendant was standing over her with a section of a pool cue in his hand. She asked him if he had “choke[d her] out.” Defendant replied that that was nothing, and hit her over the head with the pool cue. While Aul was still on the floor and bleeding from the blow to her head, defendant struck her with his closed fist about 10 times.
During this attack, defendant told Aul that he was going to keep her there for a month and told her that she would not leave alive. Aul “had a good idea” what defendant was capable of, and feared for her life. She attempted to use her cell phone to call 911, but defendant grabbed it and threw it into a file cabinet drawer. She decided to try to get out through a window. Before she could do so, there was a knock at the door. Defendant told her to keep quiet and went downstairs. Aul immediately ran to the window and removed the screen. She saw defendant’s friends Mike Augusto and Renee Williams (also called Rita Williams). She screamed “Help me.” She saw them look up at her, but they did not come to her aid. Before she could get out the window, defendant grabbed her and pulled her back inside. She then saw Mike Augusto out of the corner of her eye, standing in the hallway outside the office, but he left without assisting her.
Defendant continued beating Aul throughout the night, using both his fists and the pool cue. He told her he was going to break her legs. At some point, defendant sat next to Aul on a sofa and took a picture of the two of them with his cell phone. The picture showed Aul bleeding and her face swollen. Defendant threatened to kill Aul and her children if she reported him to the police. She took him seriously because he knew her children’s names and where they lived.
Toward the end of the beating, defendant choked Aul a second time, causing her to lose consciousness. She woke up in his bed early the next morning. After she woke up, defendant slapped her on the side of her head where he had first hit her with the pool cue.
Aul asked defendant to take her to the hospital. He refused, saying he didn’t want the police to find out. However, he agreed to take her to Augusto and Williams’s house. He told her again not to go to the police. Williams and Kathy Luna agreed to take Aul to the hospital. Aul insisted on stopping at defendant’s condominium to pick up her purse and cell phone. As they were about to leave the condominium, Aul saw defendant returning. A neighbor who was outside allowed Aul to use her cell phone to call the police. The police officer who responded called an ambulance, and Aul was taken to the hospital.
The officer who responded to Aul’s call testified that Aul’s face and clothing were bloody and that she was stumbling and disoriented. She spoke in a whisper and appeared frightened. When he spoke to her later at the hospital, she said she did not want to speak about the incident. She was crying and still appeared frightened. She said that defendant would kill her for speaking to law enforcement, and that if defendant did not, his friends would.
Aul had injuries on every part of her body, consisting of blunt trauma bruises and lacerations. She had striation marks on her neck, her entire face was swollen and her lips were so bruised that they appeared black. Her bruises lasted for about a month and she was in a great deal of pain. The laceration on her head was “glued” in lieu of suturing.
Defendant admitted to Augusto that he had hit Aul with a pool cue. He admitted to Kathy Luna that he had “never beaten up anybody like that before.” He told her that Aul had disrespected him. He did not want her to be taken to the hospital because “they” would call the police and he would go to jail.
Police obtained a search warrant and searched defendant’s home that afternoon. They observed blood smears on the walls and banister, blood on the bedding and blood on some clothing located in the bathroom. They found a piece of green carpet with red stains on it rolled up in the garbage. Aul testified that she noticed the morning after the attack that defendant had removed the green carpet that had been in his office the night before.
Several weeks before this incident, defendant had “trashed” his condominium with a hatchet after an argument with Aul. A few days before this incident, defendant had locked Aul in his garage for about half an hour after an argument.
DISCUSSION
SUBSTANTIAL EVIDENCE SUPPORTS THE JUDGMENT
Defendant contends that there is insufficient evidence to support the jury’s verdicts finding him guilty of torture, criminal threats and dissuading a witness.
Upon a challenge to the sufficiency of the evidence, we review the record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. The sufficiency of the evidence must be determined from the entire record, indulging all reasonable inferences in support of the judgment which may be drawn from the evidence. (People v. Davis (1995) 10 Cal.4th 463, 509.) The reviewing court does not reweigh the evidence or determine the credibility of witnesses. It must resolve all conflicts in the evidence in favor of the judgment. The judgment will be upheld if it is supported by substantial evidence, even if there is substantial evidence which would support a contrary result. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.)
Defendant demonstrates at most that there was conflicting evidence from which jurors could have drawn different conclusions. Disregarding these conflicts, as we must, we find that there is substantial evidence which supports each of the three verdicts defendant challenges.
Torture
Section 206 provides: “Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. The crime of torture does not require any proof that the victim suffered pain.”
Section 206 focuses on the mental state of the perpetrator and not on the actual pain inflicted on the victim. (People v. Hale (1999) 75 Cal.App.4th 94, 108.) The essential mental element of the offense is the intent to cause cruel or extreme pain. (§ 206; People v. Pre (2004) 117 Cal.App.4th 413, 420.) Intent is rarely susceptible of direct proof and usually must be inferred from the circumstances surrounding the offense. (People v. Pre, at p. 420.) A prolonged attack may be circumstantial evidence of the necessary intent. (People v. Hale, at pp. 107-108.) Any other circumstances, including the defendant’s statements before or during the course of the attack, may also provide evidence of his or her intent. (Ibid.)
Here, the beating was unquestionably prolonged and severe. According to Aul, it began before sunset on June 6 and lasted until defendant choked her into unconsciousness at an unspecified hour. It then resumed, at least to the extent of one final slap on the site of the first blow with the pool cue, at sometime before dawn on June 7. The beating was precipitated by Aul’s temerity in speaking to another man at defendant’s home. Aul testified that defendant was jealous and controlling. Immediately before the physical attack, he harangued her about her “disrespecting” him. Defendant beat Aul for hours, inflicting bruises and lacerations which caused her a great deal of pain and required pain medication for about two weeks.[2] During the course of the beating, defendant posed Aul next to him and took their picture. This evidence amply supports the inference that defendant intended to inflict cruel and extreme pain in order to punish Aul for her disrespect, and to teach her a lesson and show her who was in control.
Defendant contends that there was evidence which suggests that the beating was the result of a sudden outburst of rage, that it took place in a short period of time rather than over a prolonged period, and that it was not accompanied by the intent to cause cruel or extreme pain, other than that which would normally be included in the offense of assault by means of force likely to cause great bodily injury. It is not our function to resolve conflicts in the evidence, nor to determine what weight the jury should have afforded to particular items of evidence. (Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 630-631.) Because the verdict is supported by substantial evidence, we must uphold it, even though the trier of fact could have reached a different conclusion if it had believed other evidence. (Ibid.)
Criminal Threats
In pertinent part, section 422 provides for punishment of any person “who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety . . . .”
A “sustained fear” is one which is more than momentary, fleeting or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) The requirement that the victim reasonably be in sustained fear has both an objective and a subjective element: The victim must actually experience sustained fear, and the sustained fear must be reasonable under the circumstances. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) The parties’ history can be considered as one of the relevant circumstances. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.)
Here, there is substantial evidence that Aul was in sustained fear for her safety and that of her children. Defendant told Aul that she would not leave his house alive and that he would keep her there for a month. He made that statement after she regained consciousness after he choked her. He proceeded to strike her with his fists and with a pool cue for hours. He physically prevented her from escaping. During that time, he threatened to kill her and to kill her children if she reported the incident to the police. He also threatened to break her legs. Aul believed that defendant would carry out those threats, and feared for her life. The police officer who spoke to her at the condominium the next morning testified that she appeared to be very frightened. When he spoke to her later at the hospital, she still appeared frightened and was very reluctant to talk because she believed that defendant would kill her if he knew she had spoken to law enforcement. She said that if he didn’t, his friends would. This evidence supports the conclusion that Aul suffered sustained fear, lasting from the beginning of the incident until long after it was over.
Aul’s fear was reasonable under the circumstances. Defendant had choked her into unconsciousness and had beaten her for hours. He had prevented her from escaping out the window and then resumed beating her and choked her into unconsciousness again. A few weeks earlier, he had violently “trashed” his own home with a hatchet following an argument with her, and a few days earlier had locked her in the garage after an argument. Defendant had tattoos which Aul believed indicated that he had connections with violent people who would assist in carrying out his threats. He knew her children’s names and knew where they lived.
Defendant contends that the evidence establishes that he lacked the specific intent to cause Aul to believe that he intended to kill her or her family because his words were merely an angry outburst “accompanying his conduct while arguing with the victim.” Defendant was not “arguing” with the victim when he threatened her and her family; he was beating her and had just choked her until she became unconscious. The evidence supports the inference the jury drew, i.e., that defendant acted with the specific intent to cause Aul to feel sustained fear for her safety and that of her family.
Dissuading a Witness
Section 136.1, subdivision (c)(1) makes it a felony to knowingly or maliciously use force or an express or implied threat of force or violence upon any person to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. Subdivision (d) of section 136.1 provides that an attempt to commit any act described in subdivision (c) is also a felony, without regard to the success or failure of the attempt. Conviction of felony witness intimidation requires proof that the defendant acted with the specific intent to dissuade a witness from testifying. (People v. Young (2005) 34 Cal.4th 1149, 1210.)
Defendant contends that the evidence is insufficient to prove that he acted with the specific intent to dissuade Aul from testifying because, although Aul testified that he once “told” her not to go to the police, she indicated that on another occasion he “asked” her not to go to the police. He also contends that his actions were inconsistent with the intent to dissuade her because he did not object when it was agreed that Aul would be taken to the hospital, even though he knew that the police would inevitably be notified. This grossly distorts the record. Defendant threatened to kill Aul and her children if she reported the incident to the police. He made this threat after having administered a brutal beating. This is substantial evidence which supports the conclusion that defendant acted with the specific intent to intimidate and dissuade Aul from going to the police and initiating criminal proceedings. The fact that he later agreed to let Williams take Aul to the hospital does not alter the evidence that he acted with the requisite specific intent earlier in the incident.
SECTION 654 PRECLUDES UNSTAYED SENTENCES ON SOME COUNTS
“Section 654 reads ‘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. . . .’ Although section 654 speaks in terms of an ‘act or omission,’ it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time. [Citation.] The key inquiry is whether the objective and intent attending more than one crime committed during a continuous course of conduct was the same. [Citation.] ‘[I]f all of the offenses were merely incident 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.] If, on the other hand, defendant harbored “multiple criminal objectives,” which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, “even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.”’ [Citation.]” (People v. Meeks (2004) 123 Cal.App.4th 695, 704.)
A defendant’s intent and objective are factual matters for the trial court to determine. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) We must affirm the sentence if substantial evidence supports a trial court’s determination that a defendant entertained multiple objectives in the commission of crimes occurring during a single course of conduct. (Ibid.) Here, there was no discussion of section 654 during the sentencing hearing or in the probation report, and the trial court did not allude to it in pronouncing sentence. However, in the absence of any reference to section 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective. (See, e.g., People v. Blake (1998) 68 Cal.App.4th 509, 512; People v. Osband, supra, at pp. 730-731.)[3]
We first address the assault and torture counts. The prosecutor argued that the torture consisted of multiple beatings over a 12-hour period, while the assault consisted of defendant’s acts of repeatedly hitting Aul with his fists and with the pool cue and of strangling her. There is no factual basis in the record for ascribing different objectives to those acts. The record supports only the conclusion that defendant beat Aul to punish her for “disrespecting” him or to exert control over her.[4]
Respondent contends that sentencing on both the assault and torture counts is permissible because the trial court could have treated the initial strangulation of Aul as the incident underlying the assault count. It points out that defendant could have desisted at that point, but instead, as soon as Aul regained consciousness, he began to beat her. Respondent relies on the doctrine that multiple sentences may be imposed if the offenses were sufficiently separated in time that defendant had time to reflect and the opportunity to discontinue the course of conduct.
Respondent’s argument derives from People v. Perez (1979) 23 Cal.3d 545. In that case, the court held that the objective of section 654 is to impose punishment which is commensurate with a defendant’s actual culpability. It is therefore appropriate to impose more severe punishment on an offender who acts with multiple criminal objectives in committing multiple offenses during a single transaction than on an offender who commits multiple offenses in furtherance of a single criminal objective. Similarly, the court held, where a defendant commits separate sexually assaultive acts on a single victim during a single encounter, it is appropriate to impose sentence for each act, even though all were committed in furtherance of the single overarching objective of sexual gratification, as long as no act was incidental to any other sexual act or the means by which any other such act was performed. (Id. at pp. 552-553.) In People v. Harrison, supra, 48 Cal.3d 321, the court added the gloss that where multiple assaultive acts are separated by periods of time during which reflection is possible, a defendant “should . . . not be rewarded [with a lesser sentence] where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior.” (Id. at p. 338.)
Although People v. Perez and People v. Harrison arose in the specific context of sexual assault, courts have applied their reasoning to other types of assault as well. For example, in People v. Trotter (1992) 7 Cal.App.4th 363, the court approved of imposing separate sentences for three counts of assault, based on the defendant’s act of firing three separate shots at a pursuing police officer. The court noted that the shots were sufficiently separated in time that they constituted separate volitional acts. (Id. at pp. 366-368; see also People v. Surdi (1995) 35 Cal.App.4th 685, 689.)
Here, although the initial strangulation could have been deemed to be an assault separate from the ensuing beating, as respondent contends, the prosecutor did not submit the assault charge to the jury on that premise. Rather, his theory was that the entire incident, consisting of repeated beatings and strangulations, constituted the assault. He submitted the torture count to the jury on the theory that the incident rose to the level of torture because it was so prolonged and because defendant’s actions indicated that he acted with the specific intent to inflict extreme pain for revenge or for the sadistic purpose of punishing Aul for her transgression against his dignity. As a result of the jury’s finding that what would otherwise have been an aggravated assault rose to the level of torture, defendant has been punished with two consecutive life sentences. This sentence is fully commensurate with defendant’s culpability for assault and torture, and there is no justification under People v. Perez, supra, 23 Cal.3d 545 for separating the incident into discrete assaultive acts in order to impose a more severe punishment. (Id. at pp. 552-553.) Therefore, section 654 precludes imposition of an unstayed sentence on the assault count.[5]
Similarly, section 654 precludes execution of sentence on the criminal threat count. The prosecutor relied on defendant’s threat that Aul would not “make it out alive” and his threat to break her legs as the factual predicates for that count. There is no basis in the record for concluding that these threats had any objective separate from defendant’s objective in committing assault and torture, i.e., to terrorize and punish Aul for disrespecting him. The court’s implied finding that defendant acted in furtherance of a separate objective with respect to the witness intimidation count is supported by substantial evidence, however. Defendant threatened to kill Aul and her children both during the assault and afterward. Although the threats he made during the course of the assault were arguably not divisible in objective from the assault itself, the threats he made afterward were unquestionably in furtherance of the separate objective of dissuading Aul from contacting the police. (See People v. Saffle (1992) 4 Cal.App.4th 434, 439-440.) Section 654 therefore does not preclude separate punishment for witness intimidation.
Our review of the application of section 654 to the false imprisonment count is more problematic, because the record reveals two alternate factual bases for that offense: that defendant forcibly prevented Aul from escaping through the window and that he ordered her not to “even think about” getting out of his truck while he drove her to Augusto and Williams’s house. In the first scenario, the false imprisonment was unquestionably in furtherance of the objective of continuing to assault and punish Aul, and separate punishment would be precluded by section 654. In contrast, the false imprisonment in the truck was apparently in furtherance of the objective of getting Aul to Augusto and Williams’s house so that Williams could tend to Aul’s injuries without taking her to the hospital and thus involving the police. An offense committed for the purpose of escaping detection or arrest may be deemed to be a separately punishable offense, or it may be deemed to be part and parcel of the primary offense, depending upon the circumstances. (People v. Saffle, supra, 4 Cal.App.4th at pp. 438-440; People v. Marintez (1980) 109 Cal.App.3d 851, 858.) Thus, if the trial court determined that the false imprisonment consisted of the latter incident, it could have determined that section 654 did not preclude a separate sentence for that count.
The record contains no indication that the trial court actually made that determination. As noted above, there was no mention of section 654 during the sentencing process. Although we can infer that the court based its decision not to stay the false imprisonment sentence on its determination that the incident in the truck constituted false imprisonment and that the act was in furtherance of a separate objective (People v. Blake, supra, 68 Cal.App.4th at p. 512), we are reluctant to derive such an inference from a silent record under these circumstances, i.e., where one of the two alternate factual bases for the false imprisonment verdict compels the conclusion that the offense was committed in furtherance of a unified criminal objective while the other permits, but does not compel, the opposite conclusion. In the absence of any indication that the court actually considered the question, it is more appropriate to remand for resentencing to allow the trial court to make that determination in the first instance.
Summary
In summary, section 654 precludes unstayed sentences on counts 2 (criminal threats) and 6 (assault), but does not preclude imposition of an unstayed sentence on count 4 (dissuading a witness). On remand, the trial court must determine whether section 654 applies to preclude an unstayed sentence on count 3 (false imprisonment).
DISPOSITION
The judgment of conviction is affirmed, as is the indeterminate sentence imposed on count 5. The determinate sentence is vacated and the cause is remanded for resentencing in accordance with the summary set forth above.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
We concur:
/s/ Ramirez
P.J.
/s/ Miller
J.
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[1] All statutory citations refer to the Penal Code unless another code is specified.
[2] Bruises and lacerations can constitute great bodily injury. (People v. Hale, supra, 75 Cal.App.4th at p. 106.) Defendant does not dispute the sufficiency of the evidence that Aul suffered great bodily injury.
[3] Defendant contends that because the trial court stated that all of the offenses arose from the same course of conduct, the court implicitly found that defendant entertained a single objective. We disagree. The court’s statement that all of the offenses arose from the same set of circumstances and occurred during the same time frame was a reference to the court’s discretion, under the three strikes law, to sentence concurrently if the crimes were committed “on the same occasion.” This is not the equivalent of a determination, for purposes of section 654, that all of the crimes committed during the incident were in furtherance of a single objective. (People v. Deloza (1998) 18 Cal.4th 585, 594-596.) For purposes of section 654, “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.)
[4] The two acts of strangulation were the basis for the charge of attempted murder. The acquittal on that count indicates that the jury rejected the argument that defendant strangled Aul with the intent to kill her. In the absence of an intent to kill, there is no factual basis in the record for concluding that the strangulation was in furtherance of any objective separate from his objective in assaulting and torturing Aul, i.e., to punish her and teach her a lesson.
[5] The proper procedure under section 654 is to stay execution of sentence on the count which provides for the lesser punishment. (§ 654, subd. (a); People v. Monarrez (1998) 66 Cal.App.4th 710, 713.)
