Filed 12/7/05 P. v. Noble CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| THE PEOPLE, Plaintiff and Respondent, v. MARK EDWARD NOBLE, Defendant and Appellant. | D046266 (Super. Ct. No. SCD185373) |
APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed as modified with directions.
A jury found Mark Noble guilty of battery with serious bodily injury (Pen. Code, § 243, subd. (d))[1] (count 1) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)) with personal infliction of great bodily injury (§ 12022.7, subd. (a)) (count 2). The court suspended execution of a six-year prison sentence (the three-year middle term on count 2, three years for the enhancement, and a concurrent three-year middle term[2] on count 1 and placed Noble on five years' probation. Noble appeals, contending the court erred by imposing a concurrent sentence for battery with serious bodily injury rather than staying that sentence (§ 654).
BACKGROUND
On June 11, 2004, Noble and David Chen engaged in a verbal confrontation on a golf course. The confrontation ended with Noble punching Chen in the face, knocking him to the ground and causing double vision and bleeding from his nose and eye. Noble looked down at Chen and said, "That ought to teach you a lesson." Chen removed his cellular telephone from his pocket and called 911. Noble fled. A bystander came to Chen's assistance.
Chen was taken to the hospital where he remained until June 14, 2004. He suffered from extensive swelling of his cheek and eye; decreased sensation in his cheek, lip, and nose; difficulty opening his mouth; a sunken eyeball; and double vision. His cheekbone was shattered and his orbital floor (the bone around the eye) was reduced to dust. Over the next six months, Chen underwent three surgeries. The broken pieces of his cheekbone were removed and replaced with titanium mesh. Titanium mesh was inserted around his eye, where the bones were crushed, in an unsuccessful attempt to raise his sunken eyeball. At the time of trial in March 2005, he still suffered from double vision. His plastic surgeon thought that it was unlikely that Chen would regain his former appearance and possible that he would have a permanently sunken eyeball and a permanent vision deficit.
DISCUSSION
Section 654, subdivision (a) states, "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." Section 654 bars double punishment, including concurrent sentences, for a course of conduct constituting one indivisible transaction with one criminal objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Latimer (1993) 5 Cal.4th 1203; People v. Lee (1980) 110 Cal.App.3d 774, 785.) Here, Noble's crimes constituted one indivisible transaction with one criminal objective. Thus, the sentence on count 1 should have been stayed. (People v. Lee, supra, 110 Cal.App.3d at p. 785.)
The People properly concede that because the conviction on count 1 arose from the same act as the conviction on count 2, section 654 would require that the sentence on count 1 be stayed. The People contend, however, that this matter should be remanded to the sentencing court for the limited purpose of having it orally pronounce sentence on count 1 and stay that sentence. Because the record already reflects a sentence on count 1, this is unnecessary. (People v. Malabag (1997) 51 Cal.App.4th 1419.)
DISPOSITION
The judgment is modified by staying the sentence for battery with serious bodily injury (count 1). As so modified, the judgment is affirmed. The trial court is directed to correct its records accordingly.
NARES, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
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[1] Statutory references are to the Penal Code.
[2] Although the clerk's transcript reflects the concurrent term on count 1, the reporter's transcript reflects no sentence as to that count.
