P. v. Payne

Filed 3/16/07 P. v. Payne CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Cowell, Judge. Affirmed.

Michele A. Douglass, 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, Senior Assistant Attorney General, Michael R. Johnsen and John Yang Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Derick Whitfield Payne, convicted of assault with a firearm, corporal injury to a spouse and false imprisonment, contends that the trial court erred in excluding certain impeachment evidence and in imposing punishment for both assault and false imprisonment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged in a four-count information with assault with a firearm in violation of Penal Code section 245, subdivision (a)(2) in count 1,^[1]corporal injury to a spouse in violation of section 273.5, subdivision (a) in count 2, false imprisonment in violation of section 236 in count 3, and criminal threats in violation of section 422 in count 4.

After a jury trial, appellant was found guilty on counts 1, 2 and 3, and not guilty on count 4. The trial court sentenced him to the low term of two years on count 1 and to a consecutive term of eight months on count 3. The court stayed imposition of sentence on count 2 under section 654.

Evidence At Trial

1. Prosecution Case

Appellant and his wife Lorna Reid had been married for 17 years and had one child, Alyssa. Appellant owned four businesses, Choice Mortgage Services, Rendezvous Escrow Services, a real estate company, and an investment firm. Reid worked at the escrow company.

Reid testified that she separated from appellant in November 2003 as the result of an incident in which appellant struck her numerous times in the face while they were driving home from work. The incident was not reported to the authorities. A portion of appellants calendar was introduced. The entry for the date November 17, 2003 stated: I got angry and did something wrong to Lorna. The next days entry stated: Lorna moved out. The entry for November 20 stated: I told her I was sorry and asked for forgiveness and asked her to come home. She said no.

On February 17, 2004, Reid was working in her office at the escrow company. Just before 3:00 p.m., she called appellant to discuss domestic matters. Appellant was at Choice Mortgage, located in the same business complex. Shortly after the call ended, appellant appeared in Reids office, carrying a satchel. He closed and locked the door and drew the blinds. He said, were going to end this once and for all or [were going to] put an end to this once and for all. He hit Reid, pushing her to the ground. She screamed for help. He drew a gun. He threatened to shoot her if she did not keep quiet. Straddling her, he first placed the gun against her cheek and then stuck it down her throat.

While appellant was holding Reid down, he told her he was there to kill her because she had destroyed his life by filing for divorce. He talked about being an expert marksman. He said when he practiced, he imagined she was the target being blow[n] . . . away. He boasted of hiring hit men to wipe[] out Reids entire family and of having her followed by hit men. He said the hit men were instructed to kill Alyssa, Reids sister and brother-in-law, and Reids brother and sister-in-law, but not the nieces and nephews. He said he had called her 447 times after she left home, and was angry because she had answered only 21 or 27 times. He then said he was willing to give Reid another chance. He told her she was going to come home with him.

Eventually, appellant removed the gun from Reids mouth and directed her to the office chair, continuing to point the gun at her and repeating his threats to shoot her if she made any noise. Once she was in the chair, he dictated letters to each of their respective attorneys instructing them to dismiss the dissolution proceedings. She typed three such letters and was working on a marriage settlement agreement by the time deputies arrived.

Before beginning to dictate the marriage settlement agreement, appellant opened the blinds, keeping the gun below the line of the window. He told Reid to act normally so that the other employees would believe that nothing inappropriate was transpiring. A patrol car drove past the building. Appellant told Reid to call two different employees in the outer office, but neither answered. Reids brother called. Reid kept saying she was fine without regard to the questions he was asking, hoping to signal her distress. After talking to someone briefly on his cell phone, appellant turned his back on Reid and seemed to be moving his hands. He then walked into the bathroom and put something in the cupboard under the sink. When he came out, he was no longer holding the gun. He left the office and a deputy entered. The deputy detained appellant. Reid directed the deputy to the bathroom cabinet.

After appellants arrest, Reid went to the home she had formerly shared with him. She saw a handwritten banner that said, Welcome Home Lorna and Alyssa. Materials related to the couples assets such as car keys and pink slips were laid out in neat piles or in plastic bags along with a letter to Alyssa. The letter informed Alyssa that the couples automobiles were owned free and clear and that there was an insurance policy to pay off the mortgage on the house. It concluded: Alyssa, I wish you a wonderful life and do everything you can to be a good, decent and caring person. I love you, Daddy.

The next day, Reid went to see her doctor due to an injury in her mouth caused by the gun. Reid also sustained a cut on the lid of her right eye.^[2]

On cross-examination, Reid admitted that she had lied under oath in a 2002 debtor exam and had signed under penalty of perjury a bankruptcy petition containing numerous misstatements about her assets and income. She testified that appellant had advised her how to answer the questions and had filled out the bankruptcy forms without her input. Although he had never hit her before November 2003, she was afraid of him because he belittled her and prevented her from sleeping. In particular, he cursed at her and criticized her for answers she had given in a prior debtor exam. Reid also admitted withdrawing in excess of $50,000 from the business accounts immediately after appellants arrest.

Aracellis Colman and Heloise Smith, employees of Rendezvous Escrow, testified to seeing appellant enter Reids office carrying a black satchel on the day in question, and hearing Reid yell for help.^[3] They attempted to check on Reids condition by knocking on the door. Appellant yelled something like: Get away from the door. Were trying to work out family problems. In addition, Reid told Colman over the telephone that everything was fine. Smith eventually called authorities, after trying the door handle and finding it locked.

Los Angeles Sheriffs Deputy Scott Bastian testified that he responded to the call. Appellant opened the office door after Deputy Bastian demanded entry. Reid appeared extremely distraught. She was crying and shaking and had difficulty speaking. She directed deputies to the bathroom where they located a black satchel and gun. There was ammunition in the satchel. Deputy Bastian did not notice any injuries on Reid.

The sheriffs department criminal lab obtained DNA from the gun barrel and compared it to a DNA sample taken from Reids mouth. The samples matched.

2. Defense Case

Appellant testified that when he married Reid, she was greatly in debt.^[4] They had disagreements about financial matters throughout their marriage, beginning with how much to spend on the wedding. Reid persuaded appellant to send substantial sums of money to her parents and to transfer property he owned to her so that she could borrow against it. She also withdrew large sums of money from the businesses and used the funds for personal expenses or to give to friends and family. After appellant developed diabetes and prostate cancer, Reid demanded liposuction, compelling him to take care of her when he felt unwell. If he did not do as she said, she would become cold, angry and upset. If he gave into her demands, she would be nice to him and send him cards of thanks.

Appellant denied having encouraged Reid to lie during the debtor exam or in the bankruptcy filing. He attempted to interrupt the exam when he heard her give untrue testimony. The attorneys and Reid prevented him from correcting her misinformation. He never saw the bankruptcy petition that she filed. At around the time of the debtor exam, Reid sent him a card thanking him for being so great in so many ways. She had sent him many other cards of a similar nature.

Appellant denied having hit Reid on November 17, 2003. On that day, he overheard her talking on the telephone to someone and ascertained it was a man. They appeared to be making plans. When appellant and Reid were driving home, he asked whether she was being unfaithful. She became angry and hit him repeatedly with her cell phone, cutting his finger. He exited the freeway and told her to get out of the car. Then he pulled into a parking lot in order to retrieve the first aid kit from the trunk. She walked up and began to assist him. When his finger was bandaged, they both got back into the car and drove home. He wrote, I did something wrong in his calendar, referring to ordering Reid out of the car.

Appellant purchased a gun on February 1, 2004. He bought it because he was fearful for his personal safety, primarily due to an incident when an armed man came into the escrow company. He was also motivated by the fact that friends had been victims of violent crime while at their places of business. When he picked up the gun from the dealer on February 14, he put it in his satchel. Reid was aware that he had a gun.

Appellant wrote the letter to Alyssa at the end of January 2004 because he was in ill health and wanted her to know his assets were hers, if he died. He gave a copy of the letter to Reid. He denied putting piles or packages of materials describing the couples assets on the table. He had put the materials together years earlier and placed them in a briefcase.

On the day of the incident, appellant walked into Reids office and shut the door. The doors mechanism caused it to lock automatically. Reid started yelling, asking him why he had locked the door. He closed the blinds in order to show her the burns from his radiation treatment, which required him to take off his coat, pants and underwear. After he got dressed again, they had a discussion about a lawsuit in which they were both plaintiffs. She wanted him to pay some attorney fees. He told her he would not pay unless she agreed to a reconciliation. She told him she was ready to move back. She promised to call her attorney, but he asked her to put it in writing. During this time, the gun was in his satchel. It was not loaded. The cylinder contained empty cartridges. After the couple noticed the arrival of the deputies, Reid told appellant to put the gun away before he went out to speak to them. She expressed concern about what could happen if a Black man or Black couple were found in possession of a gun by law enforcement personnel. Due to their discussions about her past experiences, he did not think it an unusual request. He was in the office a total of 45 minutes.

The defense called a DNA expert who testified that the prosecutions DNA laboratory erred by using all the material found on the gun for its test, failing to leave sufficient material for a retest by the defense. He also testified that the amount of DNA material found on the gun was less than would be expected if the gun had been placed in Reids mouth.

DISCUSSION

I

Exclusion of Evidence

A

Contested Rulings

Appellant contends that two of the trial courts evidentiary rulings during trial were erroneous. The first contested ruling was made while appellant was testifying concerning cards he had received from Reid during the marriage, particularly around the time of the debtor exam. As discussed above, evidence concerning the debtor exam had been introduced to impeach Reids credibility by showing that she had lied under oath on prior occasions. Reid had insisted that she lied only after being pressured to do so by appellant. To supplement his testimony that he had not coerced Reid, appellant brought with him a bag of greeting cards purportedly sent to him by Reid during the marriage. At defense counsels request, he read one into evidence. Counsel asked him to read a few more. The court interposed its own objection under Evidence Code section 352, stating that the defense was straying too far afield and would not be permitted to go into this any further. Defense counsel contended that the cards supported impeachment. The court disagreed: None of these cards impeach her. If he wants to testify she lied under oath and he did not urge her to lie, as she said, thats impeaching her. But [the] fact [that] during the course of an impetuous marriage she sent [a] card to her husband that says I love you . . . its not impeaching. She never said she didnt love him. Counsel was permitted to ask appellant whether there were many cards of a similar nature to the one that had been introduced. Appellant stated that there were.

The second contested ruling was made just after appellant testified that he put the satchel containing his gun in the bathroom cabinet at Reids urging. Defense counsel asked whether there had been conversations in the past . . . between you and [Reid] about White officers when they find a gun in the midst of Black people. Counsel also asked whether appellant had experience yourself, Sir, when some Black people were found or somebody was found with a gun and he or she was near other Black people. The prosecution objected on relevance grounds to both questions, and the court sustained the objections. Thereafter, at defense counsels request, the court permitted him to ask appellant whether he and Reid had discussed what officers did when they found a Black person in possession of a gun. Appellant responded affirmatively that they had discussed her situation as well as appellants experiences. The court denied defense counsels further request to ask whether there had been general discussions in the Black community about what happens when the gun is found.

Appellant contends that the trial courts rulings improperly excluded relevant evidence that would have bolstered his version of events and supported his claims that (1) Reid was lying about being intimidated by appellant when she testified falsely and signed legal papers containing falsehoods in the past, and (2) appellant put the satchel containing the gun in the bathroom cabinet not to hide it, but due to Reids concern for his safety. According to appellants brief, the two rulings impinged greatly upon appellants Sixth Amendment right to present a defense and violated his right to due process of law. He further argues that the court misapplied Evidence Code section 352, and that the proposed testimony would not have been cumulative or unduly time consuming.

B

Standard of Review

[A]n appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion. [Citation.] (People v. Alvarez (1996) 14 Cal.4th 155, 201.) This standard of review is applicable both to a trial courts determination of the relevance of evidence as well as to its determination under Evidence Code section 352 of whether the evidences probative value is substantially outweighed by its prejudicial effect. (People v. Martinez (1998) 62 Cal.App.4th 1454, 1459.) That discretion is only abused where there is a clear showing the trial court exceeded the bounds of reason, all of the circumstances being considered. (People v. DeJesus (1995) 38 Cal.App.4th 1, 32.)

C

Analysis of Trial Courts Rulings

We turn to whether the trial court improperly excluded relevant evidence or misapplied Evidence Code section 352 here. Although the definition of [r]elevant evidence includes evidence relevant to the credibility of a witness . . .  (Evid. Code, 210), evidence that impeaches a witness by establishing prior acts of dishonesty is considered collateral in that it has no relevancy to prove or disprove any issue in the action. (People v. Rodriguez (1999) 20 Cal.4th 1, 9, quoting 1 Jefferson, Cal. Evidence Benchbook (3d ed. 1997) 27.105, 27.106, pp. 478-479.) Here, the proposed evidence had no purpose other than to impeach Reid -- and bolster appellant -- on collateral matters unrelated to appellants guilt or innocence. Under some circumstances, such evidence may be entirely excluded. In People v. Jennings (1991) 53 Cal.3d 334, for example, the trial court excluded under Evidence Code section 352 evidence that prosecution witnesses had made false averments of their income under oath when applying for county welfare benefits. (53 Cal.3d at p. 371.) The Supreme Court upheld the ruling, explaining that a criminal defendant has a constitutional right to present all relevant evidence of significant probative value in his favor, but not to an unlimited inquiry . . . into collateral matters. (Id. at p. 372.) To be admissible, the proffered evidence must have more than slight-relevancy to the issues presented. (Ibid., quoting People v. Northrop (1982) 132 Cal.App.3d 1027,1042; see also People v. Williams (1996) 46 Cal.App.4th 1767, 1779 [court precluded examination of witness on whether he had given false testimony on another matter]; People v. Morse (1992) 2 Cal.App.4th 620, 640-641 [court excluded evidence that witness had taken his children out of state in violation of court order].)

Because Reid was a crucial prosecution witness and the sole witness to testify concerning appellants aggressive actions inside the office, the court permitted the defense considerable leeway in presenting impeachment evidence. Proof that Reid lied under oath in other proceedings in order to protect her financial interests was probative of her credibility and was of assistance to the jury in determining appellants guilt or innocence. It was also difficult and time-consuming to establish. Thus, the court had reason to be concerned about defense counsel going too far afield in his questioning and unnecessarily prolonging the trial.

Appellant contends the cards impeached Reids testimony about being intimidated by him throughout the marriage. The fact that Reid sent appellant numerous cards during their marriage expressing love or affection had no relevance to whether she also felt intimidated by him. Nonetheless, appellant was permitted to show the jury the stack of cards given him by Reid, read a typical card into evidence, and testify that the remaining cards were similar in nature. The courts decision to preclude repetitive testimony concerning sentiments expressed on pre-printed cards did not represent an abuse of discretion. This is particularly true where, as here, the witness was impeached more directly by the evidence that she had lied under oath in prior proceedings and signed legal pleadings containing false information. (See People v. Avila (2006) 38 Cal.4th 491, 588-589 [where witness acknowledged lying to police and another witness testified to his reputation for untruthfulness, trial court did not err in excluding evidence of crimes committed by witness offered to impeach him further].)

The proposed testimony that Reid had knowledge of someone among her acquaintances or in the Black community having a bad experience when found in possession of a gun was equally irrelevant to any issue before the jury. If admitted, it would have supported appellants testimony that Reid advised him to put the gun in the bathroom before speaking with deputies. However, a determination that appellant was so advised would not have assisted the jury in addressing the ultimate question before it. The issue confronting the jury was not whether appellant had a good reason for hiding the gun in the bathroom, but whether he drew the gun and used it to assault and threaten Reid before putting it away. Because the proposed testimony would not have assisted the jury in resolving appellants guilt or innocence and was of only marginal relevance to his credibility on a collateral point, the court did not err in excluding it.^[5]

II

Section 654

Appellant contends that the court erred in imposing separate punishment for the assault charge (count 1) and the false imprisonment charge (count 3), because the crimes were committed as part of a single criminal objective. More specifically, appellant argues that the assault was committed for the purpose of facilitating the false imprisonment and that the sentence on count 3 should have been stayed pursuant to section 654.

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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. ( 654, subd. (a).) The Supreme Court has explained that [w]hether 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. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) In other words, section 654 applies not only where there was but one act in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654. (Ibid., quoting People v. Brown (1958) 49 Cal.2d 577, 591.)

In People v. Latimer (1993) 5 Cal.4th 1203, the Attorney General asked the Supreme Court to overrule Neal and adopt a test true to the language and purpose of . . . section 654. (5 Cal.4th at p. 1205.) The court acknowledged that the Neal test does not necessarily ensure that a defendants punishment will be commensurate with his culpability because [a] person who commits separate, factually distinct, crimes, even with only one ultimate intent and objective, is more culpable than the person who commits only one crime in pursuit of the same intent and objective. (5 Cal.4th at p. 1211.) Nonetheless, the Supreme Court reaffirmed Neal, holding that where the defendant is convicted of both kidnapping and rape and the intent or objective behind the kidnapping was to facilitate the rape, section 654 precludes punishing the defendant for both crimes. (5 Cal.4th at pp. 1216-1217.)

Neal does not preclude multiple punishment where [the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other. (People v. Beamon (1973) 8 Cal.3d 625, 639.) In that situation, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (Ibid.) It is defendants 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.) [W]hether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) [T]here must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.] (People v. Coleman (1989) 48 Cal.3d 112, 162.)

There are many instances where courts have found multiple criminal objectives in a single, relatively brief course of criminal conduct. In People v. Coleman, the Supreme Court upheld separate punishments for the assault and robbery of a single victim where the objective of the robbery had been completed and the victim was stabbed to prevent her from raising an alarm. (48 Cal.3d at p. 162.) Similarly, in People v. Nguyen (1988) 204 Cal.App.3d 181, where the defendant took the victim into a back room, relieved him of his valuables, forced him to lie on the floor, and then shot him in the back, the court held that the act of gratuitous violence against a helpless and unresisting victim was not incidental to the robbery for purposes of section 654. (204 Cal.App.3d at p. 190.) In People v. Booth (1988) 201 Cal.App.3d 1499, the court held that the defendant could be punished for both burglary and rape where he entered the homes of his victims with the intention of achieving two criminal objectives -- rape and theft. (Id. at pp. 1504-1505; see also People v. Trotter (1992) 7 Cal.App.4th 363, 366-368 [defendant could be punished for two assaults, where he fired three shots at a police officer while fleeing in a stolen taxicab, the first shot separated by almost a minute from the second two].)

In a similar vein, numerous courts have held that section 654 does not bar multiple punishment where the defendant rapidly commits a series of sexual assaults during a single encounter with the victim, in spite of the fact that the sole ultimate intent was to achieve sexual gratification. (See, e.g., People v. Harrison, supra, 48 Cal.3d at p. 338 [separate punishment proper where defendant digitally penetrated victim three separate times over a five to seven-minute period and each of defendants repenetrations was . . . occasioned by separate acts of force], italics omitted; People v. Perez (1979) 23 Cal.3d 545, 552-553 [section 654 did not apply to oral copulation and sodomy convictions arising out of a single 45-minute attack]; People v. Phillips (1985) 169 Cal.App.3d 632, 642 [separate punishments for digital penetration and rape of a minor during a brief encounter not precluded by section 654].) Section 654s purpose is served where courts recognize that a defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act. (People v. Harrison, supra, at p. 336, quoting People v. Perez, supra, at p. 553.)

The reasoning of the courts in the sexual assault cases was applied in People v. Nubla (1999) 74 Cal.App.4th 719, where the defendant committed several acts of physical violence against his wife -- bloodying her nose by pushing her on the bed, putting a gun to the back of her head and putting a gun in her mouth. The court held it was not error to impose multiple sentences for assault and corporal injury on a spouse, reasoning that appellants offenses were somewhat analogous to sex offenses in that several similar but separate assaults occurred over a period of time. (Id. at p. 730.) Just as each sexual assault may be viewed as a separately punishable criminal act, notwithstanding that all the offenses arguably were done to obtain sexual gratification, because [n]one of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental to any other[,] the defendants separate assaults were not done to facilitate each other and were not incidental to each other. (Id. at pp. 730-731, quoting People v. Harrison, supra, 48 Cal.3d at p. 336.) Accordingly, [t]he trial court was entitled to conclude that each act was separate for purposes of Penal Code section 654. (Id. at p. 731.)

With the understanding that section 654 permits multiple punishment for separate assaults that are not incidental to each other or some other criminal objective, we turn to the parties contentions. Appellant contends that the assault and false imprisonment were committed simultaneously as one act and that pushing Reid to the floor, holding the gun to her cheek, placing the gun inside her mouth, and standing behind her holding the gun were all the means by which appellant effectuated the false imprisonment. Respondent attempts to support the trial courts sentencing choice by arguing that when appellant shoved the gun down [Reids] mouth, he held an intent to shoot her, and then at some point, he changed his mind, thereafter deciding to hold her there to prepare papers relating to the divorce. While we agree that the trial court could have reasonably found more than one criminal objective, we do not believe the evidence supports respondents assessment of an intent to kill.

Respondent contends its position is supported by the evidence that appellant laid out notes and paper regarding his assets and wrote instructions to his daughter on how to take possession of family property and by appellants reported comments at the time of the initial assault on Reid: were going to end this once and for all or [were going to] put an end to this once and for all. Respondent overlooks the undisputed evidence that the gun was not loaded. Laying out papers pertaining to assets and writing the letter to Alyssa might be construed as proof that appellant contemplated a murder-suicide at some point, but does not signify his intent on the day of the incident when he assaulted Reid. The absence of live ammunition in the gun indicates an intent to scare or terrorize rather than to cause death or serious harm. Moreover, the trial court disagreed that the letter to Alyssa was a murder/suicide note, expressly stating that it could not accept the prosecutions characterization as being a conclusive fact. Instead, the court found that appellants conduct was emotional rather than premeditated.

However, merely because appellant did not enter the office with the intent to kill does not mean that his sole criminal objective was to falsely imprison Reid in order to force her to write letters to the attorneys dismissing the divorce action. Appellant himself testified that the decision to write the letters was made while he was in the office. Accepting Reids testimony that appellants initial actions were to knock her to the ground, stick the gun against her cheek and in her mouth, and rant about what would happen to Reids family if she did not return to him, the trial court could reasonably have concluded that appellant entered the office intending to assault or terrorize Reid and thereafter formulated the plan to hold her there for the better part of an hour while he forced her to write the letters to their attorneys. Multiple wrongful acts committed for separate criminal purposes may be punished separately, even if they occurred within a brief period of time. (People v. Harrison, supra, 48 Cal.3d 321; People v. Perez, supra, 23 Cal.3d 545; People v. Nubla, supra, 74 Cal.App.4th 719.)

One final point: appellants current contention that the assault and false imprisonment were all part of a single plan must be contrasted with the argument made by defense counsel at the sentencing hearing. At that time counsel argued: It wasnt premeditated. It wasnt calculated. If it was . . . those letters that he is accused of having [Reid] type[,] [they] would have been typed in advance and all she [would have] had to do was sign her name to [them]. If it was premeditated he would not have gone to her office where people could be possible witnesses and . . . [call the police.] It was an emotional reaction. . . .  And it certainly should be treated differently [for purposes of sentencing] than something that is calculated, premeditated, and designed to hurt somebody. The trial courts agreement that appellant was not acting according to a premeditated plan led to its decision to impose the lowest possible term for the assault -- two years. Had the court believed what transpired that day was a carefully calculated plan with a single aim, a sentence of three years could have been imposed for the assault alone, as the prosecution recommended. Appellant benefited from the courts decision to treat the initial assault and the later false imprisonment as two separate, impulsive actions. Having reaped that benefit, he cannot now persuade us to treat them as one.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P.J.

SUZUKAWA, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

^[1] Unless otherwise indicated, statutory references herein are to the Penal Code.

^[2] Reids physician, Dr. Terrisa Ha, testified to observing an abrasion on the roof of Reids mouth and one in the corner of her right eye.

^[3] Smith also testified that on November 17 or 18, 2003, she noticed swelling under Reids left eye.

^[4] Besides appellant and a DNA expert, the defense called three witnesses. Reids dentist, Dr. Morel Fidler, testified that he examined her on February 19, 2004, and did not note any abrasions. Anna Jackson, an employee of Choice Mortgage, testified that she looked in the window of Reids office after learning that Reid might have called out for help. She was able to see inside the office despite the drawn blinds. She observed Reid sitting at her desk and appellant standing behind her. She did not see a gun, but she was not in a position to observe appellants hands. Marilyn Eurin, an employee of Rendezvous Escrow, testified that while Reid and appellant were in Reids office, Eurin called Reid. Reid said she was fine. When the couple left the office after deputies arrived, neither Jackson nor Eurin noticed any injuries on Reid.

^[5] Respondent notes another basis for rejecting the proposed testimony concerning Reids past experiences: it would have been hearsay. Appellant did not attempt to address the hearsay point or explain how the evidence could have fallen within an exception to the hearsay rule.