Filed 9/25/18 P. v. Esqueda CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Brian Christopher Esqueda appeals following his convictions on one count each of corporal injury to a spouse (Penal Code, § 273.5, subd. (a)[1] [count 1]), sexual penetration by force (§ 289, subd. (a)(1)(A) [count 2]), making criminal threats (§ 422 [count 3]), dissuading a witness (§ 136.1, subd. (b)(1) [count 4]), and false imprisonment (§ 236 [count 5]). Specifically, appellant contests his conviction on count 2 claiming his due process rights were violated by the trial court’s refusal to instruct the jury on the allegedly lesser included offense of sexual battery. Separately, appellant appeals the terms of his sentence, asserting his due process rights were violated when the trial court failed to stay his sentences in counts 3 and 5 pursuant to section 654. For the reasons set forth below, we affirm.

factUAL AND PROCEDURAL BACKGROUND

Appellant’s charges arise from an altercation he had with his wife in the early morning hours of March 27, 2015. Portions of the altercation were video recorded by appellant on his cell phone, while other portions were audio recorded when appellant unknowingly called 911.

Appellant and the victim were having marital trouble and, according to the victim, at the time of the altercation appellant believed the victim had slept with another man and wanted to know where she had been that night. Not wanting to tell appellant about her night, the victim went to the room where she slept, which was not shared with appellant. Appellant followed and physically assaulted the victim in that room.

During the altercation, appellant and the victim were arguing loudly and cursing at each other. As the argument escalated, appellant pushed the victim to the ground and began kicking her. He kicked her repeatedly throughout the incident, pinned her against furniture in the room, and jumped onto her with his knee. Appellant used physical restraint to keep the victim in the bedroom, took her car keys, and broke her phone. He told the victim that he had a knife and would cut her throat. The victim took these statements to be threats to her life.

At one point during the incident, the victim found herself on the ground. Appellant reached down and grabbed the waistband of her pants and lifted her from the floor. The victim’s pants ripped from the force. Appellant dropped the victim to the floor before grabbing her exposed underwear and ripping them off her. Several minutes later, appellant pinned the victim against a dresser. The victim testified appellant then placed a finger in her vagina while asking, “if that’s how it was with the other man.” The victim testified that this incident was reflected in the 911 audio recording. In that recording, the victim can be heard when she, as she described it, “cried in pain when he put his fingers inside me.” Around this time, appellant can be heard saying, “Is that what you do?”

On cross-examination, the victim admitted to being intoxicated the evening of the altercation and to remembering some parts of the evening better than others. The victim was asked several questions surrounding the timing of the alleged penetration. In answering those questions, she confirmed that the incident lifting her up and ripping off her underwear occurred several moments before the penetration. She was also questioned regarding her statements to the police and her review of the audio tape. The victim confirmed she told the police her vagina was sore from the penetration, but that the police and the hospital did not conduct a sexual assault exam. Police testimony confirmed the victim reported the penetration, but no exam was conducted.

Prior to closing arguments, appellant’s counsel requested the court instruct the jury on the crime of sexual battery on the theory, as the judge articulated it, that appellant “grabbing or tearing [the victim’s] underwear off or ripping her pants, um, might have been a battery, which might have warranted an instruction on a lesser on Count 2.” Counsel further attempted to justify the request by noting the victim “described penetration, but she didn’t give any details as to how it happened, so I can still make the argument that there was touching of the vagina, and there was no penetration, and the jury would be able to find that a 243 occurred in that instance.” The judge rejected this request because the evidence of lifting the victim from the ground was part of the corporal injury charge and the only dispute raised in the evidence regarding the penetration was whether it happened at all, as opposed to whether a touching less than penetration occurred. The court thus concluded the requested instruction would “not be supported by the evidence.”

The jury ultimately convicted appellant on all of the charges brought. At sentencing, appellant’s counsel argued that all but count 4 should be covered under section 654. The court rejected the notion section 654 was applicable, noting the five counts were “not one objective. There’s no question about that. They—there is certainly a series of conduct, and in the course of this conduct these various crimes occurred, but they’re not simply alternative theories by which a crime is prosecuted or otherwise properly stayed under 654.” The court then sentenced appellant to six years on count 2, one year consecutive on count 1, and two years concurrent on counts 3, 4, and 5, for a total sentence of seven years. This appeal timely followed.

Discussion

Appellant challenges his conviction on count 2 based on the trial court’s refusal to instruct the jury on the allegedly lesser included offense of sexual battery. He further challenges his sentence on counts 3 and 5 on the assertion those sentences should have been stayed under section 654.

Instructions on Sexual Battery

Relying on People v. Ortega (2015) 240 Cal.App.4th 956, appellant claims the court should have instructed the jury on the crime of sexual battery because sexual battery is a lesser included offense to the crime of sexual penetration by force when that penetration is committed with a finger. The people disagree and request we reject what has come to be known as Ortega’s expanded accusatory pleading test—an analysis that considers not only the pleadings but the evidence adduced at a preliminary hearing to determine whether the facts of the crime show the existence of a lesser included offense.

Standard of Review and Applicable Law

“ ‘A trial court has a sua sponte duty to “instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.” [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. “The rule’s purpose is ... to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence.” [Citation.] In light of this purpose, the court need instruct the jury on a lesser included offense only “[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of” the lesser offense.’ ” (People v. Landry (2016) 2 Cal.5th 52, 96, italics omitted.) “As our prior decisions explain, the existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.” (People v. Breverman (1998) 19 Cal.4th 142, 162, italics omitted.)

On appeal, we independently review whether the court improperly failed to instruct on a lesser included offense. (People v. Nelson (2016) 1 Cal.5th 513, 538.)

The Trial Court Correctly Rejected Appellant’s Request

Although appellant argues that he was entitled to an instruction on sexual battery under Ortega, we do not need to resolve the parties’ disputes regarding the analysis in that case to resolve this issue. Appellant’s factual basis for seeking the instruction is that the victim did not describe the penetration during the trial and, thus, the jury could have convicted appellant of sexual battery under the theory that no penetration occurred and the only inappropriate sexual touching occurred when appellant lifted the victim off the floor and ripped off her underwear. This argument twists the evidence underlying the charged offense too far to support the instruction requested.

The victim in this case testified to a specific course of conduct, appellant pinning her against a dresser and inserting his finger in her vagina, that was exclusive of any other alleged contact, sexual or otherwise, and the prosecutor relied upon that testimony to support the sexual penetration charge. According to the victim’s testimony, and all of the testimony presented at trial, appellant lifted the victim from the floor and removed her underwear well before the factual scenario supporting the sexual penetration charge. The victim did not testify to appellant touching her genitals when lifting her from the floor or ripping off her underwear. To the contrary, she testified appellant grabbed her by her clothing’s waistband. Appellant’s challenge to the victim’s credibility on this charge, and generally, thus does not raise questions whether appellant touched the victim’s vagina without engaging in penetration but rather whether the victim is telling the truth about the penetration allegations.[2] The trial court therefore correctly concluded that there was insufficient evidence upon which a jury could convict appellant of sexual battery. The evidence supported only one charge and there were no theories supported by the evidence that could demonstrate a lesser offense occurred.

Sentencing Under Section 654

Appellant contends two of his convictions should have been stayed, rather than assessed concurrently, under section 654. Appellant argues his convictions for making criminal threats (count 3) and for false imprisonment (count 5) should be stayed because both “were part of the continuous course of conduct relating to the physical assault.” The People disagree, arguing the trial court correctly concluded that each crime was committed with a unique objective, not part of a single goal.

Standard of Review and Applicable Law

Section 654 provides that “ ‘[a]n act or omission which is made punishable in different ways by different provisions ... may be punished under either such provisions, but in no case can it be punished under more than one .…’ ” (People v. Harrison (1989) 48 Cal.3d 321, 334–335, fn. 11 (Harrison).) “It is well settled that section 654 protects against multiple punishment, not multiple conviction. [Citation.] The statute itself literally applies only where such punishment arises out of multiple statutory violations produced by the ‘same act or omission.’ [Citation.] However, because the statute is intended to ensure that defendant is punished ‘commensurate with his culpability’ [citation], its protection has been extended to cases in which there are several offenses committed during ‘a course of conduct deemed to be indivisible in time.’ ” (Id. at p. 335.)

“It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] We have traditionally observed that if all of the offenses were merely incidental 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.] Although the question of whether defendant harbored a ‘single intent’ within the meaning of section 654 is generally a factual one, the applicability of the statute to conceded facts is a question of law.” (Harrison, supra, 48 Cal.3d at p. 335.)

The Facts Support the Conclusion Appellant Had Independent Objectives

Upon review of the evidence, we conclude the trial court correctly rejected appellant’s 654 argument with respect to both the criminal threats and false imprisonment counts. The facts in this case demonstrate that appellant entered the victim’s room to confront her with allegations of infidelity and obtain information on the person with whom she may be cavorting. In pursuit of these goals appellant initially resorted to physical assaults and, when that was not succeeding, began utilizing threats of violence to instill fear, as opposed to pain. In this manner, appellant’s corporal injury and criminal threats crimes were the result of separate, independent, and temporally unique criminal objectives—first to coerce her physically and later to coerce her mentally. Contrary to appellant’s argument, the fact the victim only believed appellant’s threats because of his continuing physical violence does not demonstrate he harbored the same criminal objective for both crimes or that they were part of the same criminal objective. Accordingly, the trial court correctly concluded appellant could be sentenced on the criminal threats charge.

Although it is a closer call, we similarly find the trial court correctly concluded the corporal injury and false imprisonment charges were not tied to a single intent. The evidence presented to the trial court does support appellant’s claim that he sought to restrain the victim from leaving the room as part of his attempts to physically coerce her into providing him with information. The victim’s testimony further shows that appellant regularly pushed, shoved, and attacked her as he questioned her, both while she was seeking to flee and while she was attempting to protect herself. However, the record also demonstrates that appellant entered the room with the victim to question her and that he repeatedly stood in her way or used physical force to keep her in the room and allow the questioning to continue. We see no reason why the trial court could not view those attempts as a separate criminal objective, to falsely imprison appellant in her room to badger her into revealing the information appellant wanted. That he later obtained an intent to physically harm the victim in pursuit of information and used that decision to further restrain her in the room does not preclude a finding that he harbored a unique and independent objective of imprisoning the victim.

disposition

The judgment is affirmed.