Filed 12/11/17 P. v. Garcia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

MICHAEL GARCIA,

Defendant and Appellant.
H043410
(Santa Clara County
Super. Ct. No. C1483829)
Defendant Michael Garcia appeals following his conviction of a number of sex crimes. On appeal, he requests that this court independently review the victim’s medical records to determine if the trial court erred by not disclosing discoverable material related to the victim’s veracity. In addition, he asserts that the trial court erred by not staying his sentences for threatening to kill the victim (Pen. Code, § 422; count 6), and for assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count 7) pursuant to section 654, and by imposing a $500 sex offender fine pursuant to section 290.3. Finally, defendant asks that we correct a clerical error in the abstract of judgment.
STATEMENT OF THE FACTS AND CASE
In May 2014, Doe, who was 18 years old at the time, ran away from home. Doe stayed at a homeless shelter for one night. On May 17, 2014, Doe was crying outside of the homeless shelter because she had nowhere to stay. Defendant saw Doe and told her he would have some friends give her money and pay to have her stay in a hotel. Defendant told Doe that his friend could come and pick the two of them up. Doe agreed and the two walked away together.
After about 10 to 15 minutes of walking, defendant stopped behind a Home Depot store and said they would wait for the ride from his friend there. Doe followed defendant as he went behind some bushes to smoke a cigarette. Once behind the bushes, defendant asked Doe to hug him and she did. When defendant asked Doe to kiss him, she said “No.” Defendant grabbed Doe by the hair and kissed her. Defendant slammed Doe’s head against a wall two times, which caused her to lose consciousness for a moment and fall to the ground. Defendant then got on top of Doe, lifted her shirt, and touched her chest with his mouth. He wrapped his hands around her neck, choked her, and threatened to kill her if she said anything. As Doe continued to cry and beg defendant to stop, he pulled down her pants and touched her genitals with his hand and his mouth.
On September 14, 2015, defendant was charged by information with assault with intent to commit oral copulation and sexual penetration (§ 220, subd. (a)(1); count 1); sexual battery (§§ 242, 243.4, subd. (a); count 2); two counts of sexual penetration by force, violence, duress, menace, or fear of bodily injury (§ 289, subd. (a)(1)(A); counts 3, & 4); oral copulation by force, violence, duress, menace, or fear (§ 288a, subd. (c)(2)(A); count 5); threats to commit a crime resulting in death or great bodily injury (§ 422; count 6); and assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 7). The information also alleged that defendant had suffered three prior strike convictions (§ 667, subds. (b)-(i)), three prior serious felony convictions (§ 667, subd. (a)), and two prior prison convictions (§ 667.5, subd. (b)).
On September 24, 2015, defendant was convicted by a jury of all counts, except for count 4, sexual penetration by force, violence, duress, menace, or fear. As to that count, the jury found defendant guilty of the lesser-included offense of simple battery (§ 242). Defendant admitted the prior conviction allegations. On February 8, 2016, the court sentenced defendant to 225 years to life, consecutive to 30 years. Defendant filed a timely notice of appeal.
DISCUSSION
In Camera Review of Medical Records
Prior to trial, the court reviewed Doe’s medical records that were produced pursuant to a subpoena duces tecum served by the prosecution. Defendant requested that the court conduct an in camera review of the records “to specifically look for records containing mitigating or exculpatory materials that bear on [the victim’s] credibility . . . .” The court reviewed the records and determined that there was no discoverable material that could be provided to defendant. The primary basis for the court’s finding was that the records contained no statements made by Doe, and the bulk of the information in the records was from when Doe was under the age of three.
Defendant requests that we independently review the victim’s medical records to determine if there is any discoverable material related to the victim’s veracity. (See, e.g., People v. Myles (2012) 53 Cal.4th 1181, 1209.) We have done so and agree with the trial court that the records contain no discoverable material.
Stay of Punishment Pursuant to Section 654
Defendant argues that the trial court erred when it did not stay the sentences imposed on counts 6 and 7 (§§ 422, 245, subd. (a)(4)). He asserts that these crimes facilitated the commission of sexual penetration and oral copulation by force (§ 289, subd. (a)(1)(A), count 3; § 288a, subd. (c)(2)(A), count 5), and sexual battery (§§ 242, 243.4, subd. (a), count 2). He claims that, as a result, he is entitled to have the sentences for counts 6 and 7 stayed pursuant to section 654.
Section 654 provides, in relevant part: “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 statute is intended to ensure that defendant receives punishment ‘commensurate with his culpability.’ ” (People v. McCoy (1992) 9 Cal.App.4th 1578, 1584.)
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591 (Deloza).) “ ‘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.)
“When confronted with offenses within the purview of section 654, the proper procedure is to stay execution of sentence on all but one of the offenses subject to this section.” (People v. Pena (1992) 7 Cal.App.4th 1294, 1312, italics omitted.) “Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences.” (Deloza, supra, 18 Cal.4th at p. 592.)
Here, the court found that section 654 applied only to defendant’s conviction for assault with intent to commit oral copulation and sexual penetration (§ 220, subd. (a)(1); count 1), and stayed punishment for that crime. However, with regard to threatening to kill Doe (§ 422; count 6) and assaulting her with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 7), the court found that section 654 did not apply. The court stated: “[f]or Count 7, which is a violation of Section 245(a)(4) . . . , the Court imposes 25 years to life consecutive to any other punishment. For each and every count that the Court is describing at this point, the Court is making a finding that each and every one is a distinct and separate act from other counts for which the defendant is being sentenced. Count 6 is in . . . violation of 422 of the Penal Code . . . . The Court imposes 25 years to life consecutive to any other punishment. . . .”
Here, the evidence supports the trial court’s finding that defendant’s violations of section 422 and section 245, subdivision (a)(4) were separate acts with different criminal objectives than his sex crimes. As to defendant’s crime of threatening to kill Doe (§ 422; count 6), defendant’s objective was to make Doe stop talking. This intent was separate from his objective in sexually assaulting Doe. Defendant’s threat to kill Doe was not necessary to sexually batter and assault her. (See, e.g., People v. Manning (1982) 133 Cal.App.3d 159, 169-170 [false imprisonment not incidental to rape because it was unnecessary for appellant to have tied up victim].) Because defendant’s objective in threatening to kill Doe was separate from his intent in sexually assaulting Doe, his separate punishment for that crime does not violate section 654.
Similarly, defendant’s objective when he assaulted Doe with force likely to produce great bodily injury by slamming her head into a concrete wall was to cause her physical harm. This intent and objective was separate from defendant’s intent and objective in his sexual assault crimes, which was to digitally penetrate Doe’s vagina and orally copulate her genitals. After Doe lost consciousness as a result of defendant slamming her head against a wall, defendant had the “ ‘opportunity to reflect and renew his . . . intent before committing the next one.’ ” (People v. Lopez (2011) 198 Cal.App.4th 698, 718.) He then got on top of Doe and sexually assaulted her. Defendant’s objective in committing the sexual assaults was separate from his objective in physically harming Doe.
We find that the trial court’s imposition of separate punishment for the crimes of threatening to kill Doe (§ 422; count 6), and assaulting her with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 7) did not violate section 654.
Sex Offender Fine
Defendant asserts that the trial court erred when it imposed a sex offender fine pursuant to section 290.3, subdivision (a) in the amount of $500, because the amount should have been $300. Section 290.3, subdivision (a) provides: “[e]very person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction.” Defendant argues that, because the court imposed the fine on only one of his qualifying offenses in this case, it could not impose the higher of the two fines, because the statute anticipates that the convictions must occur in one proceeding. Defendant asserts that any prior conviction may not be considered and that the $500 fine may be imposed only in those cases where there are multiple convictions in a single proceeding.
In interpreting the meaning of section 290.3, “[w]e begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first, to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of the statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (People v. Flores (2003) 30 Cal.4th 1059, 1063.)
Section 290.3, subdivision (a), requires the imposition of a $300 fine “upon the first conviction” and a $500 fine “upon the second and each subsequent conviction,” subject to the defendant’s ability to pay. The statute does not contain any language limiting the $500 fine to second or subsequent convictions that occur in the same proceeding as the first conviction. Indeed, “the statute refers to fines for convictions, not fines for proceedings.” (People v. O’Neal (2004) 122 Cal.App.4th 817, 822.) In this case, defendant admitted to having suffered three prior serious felony convictions, including assault with intent to commit a specified sex crime (§ 220) and performing a lewd and lascivious act on a child under the age of 14 (§ 288, subd. (a)).
The $500 fine in this case was ordered as to one of defendant’s four sex crime convictions. This conviction is a second or subsequent conviction for a crime specified in section 290, subdivision (c). As a result, under section 290.3, the court was obligated to impose a $500 fine in this case.
Correction of Abstract of Judgment
Defendant asserts and the People concede that the abstract of judgment must be corrected in this case to be consistent with the oral pronouncement of judgment.
“Where there is a discrepancy between the oral pronouncement of judgment and the . . . abstract of judgment, the oral pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Here, the trial court stayed the punishment for defendant’s conviction for assault with intent to commit oral copulation and sexual penetration (§ 220; count 1); however, the abstract of judgment states only that the court imposed a consecutive term for that crime. Therefore, the abstract of judgment must be corrected to reflect the oral pronouncement of judgment that the punishment was stayed pursuant to section 654.
DISPOSITION
The trial court is ordered to correct the abstract of judgment to state that the punishment for count 1 is stayed pursuant to Penal Code section 654. As modified, the judgment is affirmed.






Premo, J.





WE CONCUR:






Elia, Acting P.J.








Grover, J.