P. v. Garay

Filed 3/13/07 P. v. Garay CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Craig E. Veals, Judge. Affirmed.

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Appellant Mario Garay appeals from a judgment entered after a jury found him guilty of count 3, willful infliction of corporal injury in violation of Penal Code section 273.5, subdivision (a);[1]count 4, dissuading a witness in violation of section 136.1, subdivision (b)(2); and count 5, attempted forcible rape in violation of sections 664 and 261, subdivision (a)(2). Appellant was sentenced to the midterm of three years in state prison for count 3; the midterm of two years in state prison for count 4; and the midterm of three years in state prison for count 5 to run concurrently to the sentence imposed in count 3.

Appellant contends that, pursuant to section 654, the trial court erred in failing to stay the sentence on the attempted forcible rape count. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.

On January 28, 2006, Sandra G. was sleeping in her bedroom when appellant smashed through the bedroom window and fell on her bed. Two of her children slept in her bedroom with her. Appellant was the father of Sandra G.s three children.[2]Appellant had been in a relationship with Sandra G. for 10 years, but they were not married. Sandra G. and appellant had been separated for the past two years and Sandra G. had a restraining order against appellant which was in effect on that day.

Appellant had cut his left hand badly when he broke the window. He blamed Sandra G. for his injury and told her to treat his wounds. Appellant and Sandra G. went into the bathroom, and appellant locked the door. Sandra G. cleaned his hand. Meanwhile, the children had awakened. At first, appellant refused to allow Sandra G. to leave the bathroom so that she could take care of the children. Appellant ripped Sandra G.s shirt and threatened to kill himself if she called the police. Sandra G. finished treating appellants wound, and the two left the bathroom. Appellant picked up the broken glass in the bedroom. He calmed the children down and they went back to sleep.

Appellant then joined Sandra G. in the living room, where she was crying. The two argued about why he had broken into the apartment. Appellant asked Sandra G. to find a rag to bind his hand because it was still bleeding. Appellant tried to force Sandra G. to remove her clothes and have sex with him. Sandra G. told appellant no, but he kept trying to take her clothes off by force. Sandra G. testified that [w]hen he couldnt take my clothes off because I was pushing him away, I hurt his hand and he said that I had hurt his hand and he hit me [in the face]. Sandra G. testified that she believed appellant was drunk. Eventually, appellant fell asleep.

Sandra G. woke the children and took them to a neighbors house where she called the police. Sandra G. sustained a bruise to her right chest area from appellant grabbing her, red marks on her neck from appellant choking her, and an injury to her lip from appellant striking her in the face.

DISCUSSION

Whether the trial court erred in failing to stay the sentence on the forcible rape count

Appellant contends that his convictions for corporal injury to his childrens mother and attempted forcible rape arose from an indivisible course of conduct with a single objectiveto have intercourse with Sandra G. We disagree with his argument that section 654 operates to stay the sentence on count 5, attempted forcible rape.

Section 654 provides: 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. ( 654, subd. (a).)

The protection of section 654 has been extended to cases where a single act or omission has occurred, or where there are several offenses committed during a course of conduct deemed to be indivisible in time. (People v. Le (2006) 136 Cal.App.4th 925, 931-932.) It is defendants intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] (People v.Harrison (1989) 48 Cal.3d 321, 335.) The defendant may be found to have harbored a single intent if the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, resultingin the defendant being punished only once. (Ibid.) 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.] (Ibid.) Whether the facts reveal a single objective is a factual matter; the meaning of section 654 is a legal matter. (People v. Guzman (1996) 45 Cal.App.4th 1023, 1028.) A trial courts implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. [Citation.] (People v.Blake (1998) 68 Cal.App.4th 509, 512.)

Section 273.5, subdivision (a) criminalizes willful infliction of corporal injury resulting in a traumatic condition upon the mother of the perpetrators child.[3] Rape is defined by section 261, subdivision (a) as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, by means of force and violence. Pursuant to section 664, an attempt is made by a person who attempts to commit any crime, but fails.

Here, appellant began the attempted rape in the bathroom when he ripped Sandra G.s shirt. In the living room, he tried to remove her clothes. Sandra G. testified that at one point, she pushed appellants hand away. She stated that appellant told her he had hurt his hand, then he punched her in the face. The evidence supports the finding that appellant harbored an intent separate from that of attempting intercourse because the blow to Sandra G.s face was in reaction to the pain Sandra G. caused him by pushing his hand away. Appellants statement that Sandra G. had hurt his hand before he struck her shows some deliberation, and illustrates that his objective in striking her was punitive, and distinct from the attempted rape. We also note that in closing argument, the People argued that the factual basis of count 3 was appellants act of hitting Sandra G. in the face, while the factual basis of count 5 was appellants act of ripping Sandra G.s shirt and attempting to remove her clothes by force.

We conclude the trial court did not err in finding section 654 had no application to the sentence on attempted forcible rape, count 5.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, J.

DOI TODD

We concur:

___________________, P. J. ___________________, J.

BOREN CHAVEZ

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] At trial, Sandra G. testified that two of the children lived with her, but it is unclear from the record where the third child resided.

[3] Section 273.5, subdivision (a) provides: Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.