P. v. Simmons

Filed 8/31/07 P. v. Simmons CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Sylvia Whately Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Charnetta Lavia Simmons of premeditated attempted murder (Pen. Code,  187, 664),[1]kidnapping ( 207, subd. (a)), and making criminal threats ( 422). In a bench trial following her conviction, the trial court found she was sane at the time she abducted and attempted to kill the victim. Defendant contests the trial courts sanity determination. She also argues life in prison with the possibility of parole constitutes cruel and/or unusual punishment, and contends the trial court erred by rejecting probation in lieu of imprisonment and by imposing an eight-month consecutive sentence on her criminal threats conviction. (See  654.) We uphold the trial courts sanity finding because defendant falls short of establishing that no reasonable fact finder could conclude she was sane on the evidence presented. And as we explain below, defendants sentencing contentions are without merit. We therefore affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

On December 16, 2002, at approximately 5:35 p.m., Elsa Kaiser, who was nine months pregnant, walked to her car after her final, prebirth visit with her obstetrician at St. Jude Hospital in Fullerton. When Kaiser exited the elevator, defendant approached Kaiser and asked if she would participate in a survey aimed at preventing back pain for pregnant women. Defendant offered to pay Kaiser $25 for her time and Kaiser accepted. Kaiser agreed to wait near her BMW while defendant reparked her Range Rover next to Kaisers car.

Defendant soon arrived and stood outside Kaisers vehicle to ask her questions about her pregnancy, her prenatal treatment, and the gender of her unborn child. After a short while, Kaiser and defendant continued the interview in Kaisers car because the night was cold. Defendant excused herself to retrieve something from her vehicle and, as defendant searched, Kaiser stood beside the Range Rover. Defendant informed Kaiser she wanted to show her the proper way to sit to avoid back pain. Kaiser entered the front passenger seat of defendants car, and defendant adjusted her seat for her comfort. Defendant circled around to the drivers seat, sat down, and proceeded to tell Kaiser about the role of stress in causing back pain. Defendant checked Kaisers pulse, had her smell a lemon-scented card, and made notations on a piece of paper.

Defendant talked about the difficulty she had conducting her interviews at other locations and how her ex-husband encouraged her to persevere. The women discussed different topics and at one point defendant lent Kaiser her cell phone so she could notify husband she would be late. Defendant continued the conversation and asked Kaiser why she chose to work so late in her pregnancy. Kaiser responded that she would rather earn money than receive disability or unemployment, whereas [s]ome people, they just look for any excuse . . . not to be working.[2]

Defendant advised Kaiser she wanted to check one more thing. As Defendant felt Kaisers back, she grabbed a knife, reached over Kaisers head and stabbed Kaiser in the chest, leaving a bleeding, 1-inch incision. Kaiser collapsed and defendant pulled her to the passenger floorboard of the vehicle as Kaiser tried to pull the blade from her chest. Kaiser began kicking the passenger window in an effort to attract attention. Defendant repeatedly beat Kaisers face with her fists until Kaiser stopped kicking. Having subdued Kaiser, defendant started the vehicle and exited the parking structure.

Over the next several hours, defendant held Kaiser hostage in her vehicle. After leaving the hospital, defendant drove from Fullerton to Costa Mesa and back while Kaiser lay bleeding on the floorboard. Defendant lamented, Im supposed to kill you but I cant kill you because you are too nice. When Kaiser offered her vehicle in exchange for her freedom, defendant responded, [I]ts not the car that we want. Frightened, Kaiser soiled her pants but, feeling the moisture, believed her water had broken. Kaiser begged defendant to take her to a hospital, but defendant continued their meandering circuit. When Kaiser sought medical attention for her chest wound, defendant reached into her purse, withdrew a bottle, and sprayed water or some other mist on Kaiser. Eventually, defendant stopped at St. Jude Heritage Center, a commercial complex deserted at the time.

There, defendant promised she would ensure Kaiser received medical attention. Defendant bound Kaisers hands together with tape and ordered her to lay flat in the back seat for the ride to the hospital. Defendant also covered Kaisers eyes with duct tape. Defendant returned to St. Jude Hospital but did not release Kaiser. When Kaiser begged defendant to just leave her there, Defendant claimed somebody else is watching, making sure I kill you for her baby. Defendant told Kaiser the person who wanted her baby also held defendants own children, who were in danger if defendant failed to deliver.

Kaiser expressed regret for defendants predicament. As Kaiser spoke of love for her husband and her unborn baby, defendant became agitated, exclaiming Kaisers baby was precious to others as well. Defendant repeated her threat to kill Kaiser and specified she would remove the baby by performing a caesarian section. She spoke of being familiar with Kaisers appointments, named her obstetrician, and advised Kaiser she knew the nurses would be gone and only the doctor and the receptionist would be in the office when Kaiser left her appointment. Kaiser assured defendant God would not allow her to die without her baby dying with her.

Defendant and Kaiser remained in the parking lot for a long time. Defendant gave Kaiser a blanket and pillow and Kaiser pretended to sleep. While pretending to sleep, Kaiser watched as defendant removed a knife from the map pocket on the back of the front passenger seat and placed it on the front passenger seat. Kaiser thought defendant was about to kill her. Instead, defendant began to doze with her head on the steering wheel.

Seizing the opportunity to escape, Kaiser pulled on the unlocked door handle, and ran to a couple she spotted approaching a nearby vehicle. She begged for their help, but defendant appeared at her side and began to lead her back to the Range Rover. Defendant told the couple she had promised Kaisers husband to take Kaiser to the emergency room and that Kaisers doctor was waiting for them. Before Defendant could get Kaiser back into her vehicle, two security officers responded to the commotion. Defendant persuaded the guards Kaiser needed to go to the emergency room but when they attempted to help her into defendants car, Kaiser became hysterical. One of the guards climbed into the back seat to accompany Kaiser on the ride.

On the way to the emergency room Kaiser continued to plead with the security officer for his protection. Kaiser showed the officer the wound in her chest and told him that defendant had stabbed her. Once defendant pulled up to the emergency room, she opened the door to let the security guard out but held back Kaiser from exiting the Range Rover. Kaiser crawled from the vehicle on her hands and knees and was directed into the emergency room by the security officers. Once Kaiser reached the emergency room, a nurse recognized her as the woman reported missing, and the second security officer contacted nearby police.

Police arrived at the scene at approximately 1:00 a.m. and detained defendant next to her vehicle. Her hands were bloody. Defendant voluntarily agreed to be transported to the police station for questioning. Defendant admitted to interviewing Kaiser for the survey but claimed to have no knowledge of how Kaiser became injured. Defendant said she saw Kaiser after the conclusion of their interview while looking for other women to interview. Defendant contends she saw Kaiser walking along a Fullerton road and stopped because Kaiser appeared injured and in need of medical attention. When questioned about blood on her legs, defendant claimed she was seven months pregnant and the blood was from the pregnancy. Defendant, however, would not agree to medical confirmation of her pregnancy.

When the police confronted defendant about her involvement with the victim and her injuries, defendant wanted the officers to read her the victims statements first so she would not appear to be a liar. Upon further questioning, defendant remembered Kaiser making a derogatory comment which caused her to snap. After she snapped, defendant believed she shoved Kaiser to the floorboard and that she may have struck her, but she adamantly denied stabbing Kaiser. She believed Kaiser had only been in her car for a total of 20 to 30 minutes. She remembered binding Kaiser, and claimed it was to stop her from twitching so defendant could concentrate as she tried to find the telephone number for Kaisers doctor. By the conclusion of the police interview, defendant accepted responsibility for Kaisers injuries, and admitted her actions were wrong.

Defendant did not testify at trial. She called three experts concerning her mental health, including Dr. Richard Lettieri and Dr. Martha Rogers, forensic psychologists retained by the defense, and Dr. Chin Ryu, a psychiatrist who evaluated defendant after police placed her on a 72-hour hold at Western Medical Center following her arrest. In her interview with Ryu, defendant denied experiencing auditory or visual hallucinations. Ryus intake report described defendant as a cooperative female who was not hostile, not agitated, somewhat guarded, and evasive . . . . According to Ryu, defendant demonstrated . . . she was fully oriented, without any evidence of any gross memory disturbance . . . . Defendants mother reported no mood swings or inappropriate or disturbed behavior, but noted defendant had some sleep problems and that another doctor would evaluate her upon discharge. Ryu discharged defendant with a diagnosis of psychotic disorder not otherwise specified, without enough information to specify bipolar disorder, schizophrenia, or a substance-induced disorder. Defendant did not meet the criteria for a continued hold because she was not a danger to herself, or to others, or gravely disabled. Ryu did not prescribe any medication for defendant upon discharge.

Lettieri met with and examined defendant over a period of 13 hours in August and September 2004, around 20 months after the offenses. He diagnosed defendant with major depression, severe in recurrent episodes, with psychotic and disassociative features. Lettieri noted defendant scored in the superior range for intelligence, but explained this did not diminish the impact of her mental disorder. He also explained that a person suffering depressive psychosis could misperceive a statement made by another and respond irrationally and psychotically, with a compromised ability to regulate behavior. Defendant reported to Lettieri symptoms characteristic of a mental disorder, including hearing voices calling her stupid and degrading her in other ways. She also contemplated suicide.

Lettieri concluded defendant was in an active psychotic state at the time of the offenses based in part on her illogical behavior of assaulting the victim and then driving around with her aimlessly and returning to the same location. He also based his conclusion on defendants report that the events spanning several hours seemed to her to be minutes, and on Ryus diagnosis of defendant as psychotic just days after the abduction. According to Lettieri, defendant did not know right from wrong at the time of the offenses and did not know the nature or quality of her actions.

Rogers evaluated defendant over the course of six hours of diagnostic interviews and tests in September 2004. Rogers concluded defendant suffered from a major depressive disorder with psychotic features, including what Rogers described as acute psychotic features demonstrated at the time of the offense. Specifically, defendants recollection of the abduction as lasting a short time reflected a disassociative psychotic state in which a lack of integration between conscious experience and memory causes a memory gap in the persons subjective experience.

Rogers explained that a major depressive disorder not only changes the manner in which the brain records information but also affects a persons ability to perceive events accurately as they occur, leading to patent misinterpretations. Rogers agreed with Lettieri that defendant was delusional when she committed the offenses and did not grasp the nature and quality of her actions. Rogers testified that although a person with major depression disorder could generally distinguish right from wrong, when the disorder involves psychotic features . . . you get into more problems of knowing right from wrong because the person may not comprehend what they are doing. Rogers doubted defendant had recovered her sanity by the time of trial, and believed she still posed a risk to others. Neither Rogers nor Lettieri believed defendant was malingering during their interviews with her.

The jury deliberated for five hours over the course of two days before finding defendant guilty on all three counts. Defendant waived her right to a jury trial on the issue of sanity following her conviction. Over the prosecutors objection, the trial court allowed defendant to present additional evidence concerning her mental state, particularly concerning her videotaped interviews with the police.

Lettieri explained that although on casual observation defendant appeared coherent and organized in her thinking and expression during the police interviews, close examination showed disorganized responses and an inappropriate demeanor in light of the serious nature of the offenses. Defendant attempted to appear dignified, but burst into laughter at inopportune times. The joking references defendant made to police jargon and TV shows demonstrated she did not grasp her situation. And the manner in which she rambled from one topic to another reflected the extent of her disorganized thinking.

Lettieri explained that whereas a schizophrenics speaking patterns may reveal patently disorganized thoughts, defendants psychosis was not as readily apparent. Nevertheless, her demeanor and statements in the interview demonstrated her psychotic depressed state. Lettieri explained that someone can suffer psychosis and still sound rational. According to Lettieri, defendants insistence during the interview that she was pregnant revealed a somatic delusion she had held for at least two months, demonstrating her disconnection from reality. Lettieri noted that unlike psychopathic offenders who blame the victim for setting them off, defendant maintained throughout the interviews that Kaiser was a nice person who did not deserve what happened to her.

Rogers observed defendant began to accommodate the officers over the course of the interview, yielding to their insistence she step up to the plate and admit she snapped. Rogers noted that defendant consistently denied any ability to recall actually stabbing the victim. Rogers also focused on defendants account to police of a p-s-s-s-t sound she heard before the stabbing, which was not a voice but more like her own blood and heart beating in her head. Rogers described this phenomenon as consistent with accounts in older literature on the subject of psychosis and homicide, in which the patient experiences a change in perception marked by auditory hallucinations at the peak of a psychotic episode or a confrontation. Rogers also observed that defendants explanation for gagging and binding the victim so she [i.e., defendant] c[ould] think was consistent with psychosis.

The trial court took the matter of defendants sanity under submission and, upon reconvening the hearing a week later, concluded defendant was sane at the time of the offenses. The court had no doubt defendant suffered from a mental disorder, but concluded the disorder did not rise to the level required to demonstrate legal insanity. At sentencing, the trial court repeated its conclusion defendant was sane but acknowledged the case was certainly one of the hardest in which to impose sentence. The court expressed frustration in the lack of mental health care that exists in this state for people who are dealing with issues regarding their mental health and noted [i]t would be very easy for me to say, well, because I want this result I will [change] this [sanity] verdict which will allow me to get to [a particular] result. Recognizing that would not be true to my oath of office, the court imposed life in prison for the attempted murder conviction, the low term of three years for the kidnapping conviction, and one-third the midterm for the criminal threats conviction. Defendant now appeals.

II

DISCUSSION

A. The Evidence Did Not Require the Trial Court to Find Defendant Insane

Defendant contends the trial court erred by rejecting her claim she was insane at the time she committed her offenses. Under California law, if the jury determines the defendant acted with the requisite mens rea for conviction ( 28, subd. (a)), 29), the defendant is entitled to a subsequent determination whether he or she was insane at the time of the offense ( 1026). The sanity phase may be tried to a jury (ibid.) or, as here, the defendant may waive that right. The defendants sanity is assessed according to statutory criteria.

A criminal defendant is legally insane if, at the time of the offense, he or she was incapable of (1) knowing or understanding the nature and quality of his or her act or (2) distinguishing right from wrong . . . . ( 25, subd. (b) [codifying rule of MNaghtens Case (1843) 8 Eng.Rep. 718, 722, as enacted by Proposition 8].) Either prong suffices to establish insanity. (People v. Skinner (1985) 39 Cal.3d 765, 768.) The burden of proving insanity by a preponderance of evidence rests on the defendant. ( 25, subd. (b).) All persons are presumed sane unless proven otherwise. (Ibid.) Thus the question on appeal is not so much the substantiality of the evidence favoring the [sanity] finding as whether the evidence contrary to that finding is of such weight and character that the [factfinder] could not reasonably reject it. (People v. Duckett (1984) 162 Cal.App.3d 1115, 1119 (Duckett), superceded by statute on another ground.)

The factfinder may reject even unanimous expert opinion the defendant is insane. (People v. Drew (1978) 22 Cal.3d 333, 348-349 (Drew), superceded by statute on another ground; People v. Green (1984) 163 Cal.App.3d 239, 243-244.) This is so because [t]he value of an experts testimony with respect to sanity rests on the material from which his opinion is fashioned and the reasoning by which he reaches his conclusion. (Duckett, supra, 162 Cal.App.3d at p. 1119.) In Drew, the California Supreme Court upheld a jurys conclusion the defendant was sane against contrary expert opinion because the experts neither provided reasons for their diagnosis of latent schizophrenia, nor explained why this diagnosis established the defendant could not understand the nature and quality of his acts or their wrongfulness. (Drew, at pp. 350-351.)

Similarly, in People v. Coogler (1969) 71 Cal.2d 153, the jury reasonably rejected uncontradicted expert testimony concerning the defendants diminished mental capacity. The Supreme Court explained that the jury reasonably could reject the experts opinion, which relied on the defendants self-serving descriptions of his alleged past blackouts and lack of memory of the acts in question. (Id. at pp. 167-168.) [I]f there is substantial evidence from which the jury [or the court as trier of fact] could infer that the defendant was legally sane at the time of the offense such a finding must be sustained in the face of any conflicting evidence, expert or otherwise, for the question of weighing that evidence and resolving that conflict is a question of fact for the jurys determination [citation]. (People v. Wolff (1964) 61 Cal.2d 795, 804 (Wolff) [abrogated by statute on another ground].)

As there is no objective test that can determine a persons sanity, the trier of fact is entitled to consider any evidence that tends to prove or disprove whether defendant, at the time he committed the act, knew the nature and quality of what he was doing or knew that it was wrong. (See Wolff, supra, 61 Cal.2d at pp. 805-806.) A defendants behavior at the time of the incident indisputably sheds light upon this issue. (Ibid.) Consequently, if expert opinion fails to account for evidence pointing towards the defendants sanity, the factfinders conclusion the defendant was sane must stand. On review of a sanity determination, [o]ur power to weigh the evidence is of course limited by due deference to the trier of fact, and we must therefore view the record in the light most favorable to the verdict. (People v. Samuel (1981) 29 Cal.3d 489, 505 (Samuel).)

Here, substantial evidence supports the trial courts conclusion defendant understood the nature and quality of her acts at the time she kidnapped and stabbed the victim. More to the point, while the evidence may have been conflicting, defendants evidence of insanity failed to demonstrate the requisite weight and character necessary for us to declare that no reasonable factfinder could reject it. (Duckett, supra, 162 Cal.App.3d at p. 1119.)

Defendant argues her assertion she was pregnant illustrated a somatic delusion she had held for at least two months, show[ing] the extent of [her] psychotic thinking and the disconnect between her internal and external realities. But a reasonable factfinder could conclude defendants actions demonstrated she understood the reality she was not pregnant and that she could obtain a child by taking someone elses baby.

A reasonable factfinder also could find defendants statements to the victim provided compelling evidence she grasped the nature and quality of her acts. Her chilling admission she was familiar with Kaisers appointment schedule showed premeditation. A reasonable factfinder could conclude the planning necessary to execute a premeditated scheme demonstrated defendants engagement with external reality. As to the crux of her offenses, a reasonable factfinder could conclude defendant understood what it meant to kill another person. After she stabbed Kaiser, defendants statement, Im supposed to kill you but I cant kill you because you are too nice revealed she knew the potential real-world result of her knife thrust, recognized Kaiser as her intended victim, and recognized the attempt had failed.

A reasonable factfinder could also conclude defendant understood she was kidnapping Kaiser. When Kaiser pleaded for defendant to just leave her in a parking lot, defendants statement, I cant let you go out, showed she knew she held Kaiser against her will. No expert attempted to explain defendants statements as consistent with a conclusion she failed to grasp the nature and quality of her acts. The statements do not compel the conclusion defendant was out of touch with reality, but instead lend support to the trial courts sanity finding.

Defendant focuses on her claim she experienced an auditory hallucination immediately before she stabbed Kaiser. She relies on Rogerss testimony that a sound defendant reported hearing in her head, which was not a voice but almost like her own blood and heart beating in her head, was consistent with a phenomenon described in older literature on the subject of psychosis and homicide. But neither Rogers nor defendant explain how this phenomenon related to the legal standard of whether defendant understood the nature and quality of her acts. Even assuming the alleged sound could be understood as marking a delusional departure from reality or, in effect, a blackout of some kind, the trier of fact could weigh this claim against the evidence of premeditation, defendants statements at the scene showing awareness she kidnapped and tried to kill the victim, and the fact she had denied auditory hallucinations in a psychiatric exam soon after the offenses. In short, resolving all conflicts in favor of the trial courts ruling and viewing the evidence in the light most favorable to that ruling, we cannot say the trial court was required to conclude defendant was insane at the time of her offenses.

Defendant stresses the experts conclusion she was not malingering when she presented symptoms of mental illness. According to defendant, she truthfully remembered Kaisers captivity lasting only 20 minutes rather than hours. Rogers attributed defendants misjudgment of time to a failure to record memories while in a disassociative state. And defendant emphasizes her experts view that her conduct at the police interview demonstrated she failed to grasp the nature of her earlier actions or her current predicament. But the trial court was tasked with determining whether defendant knew what she was doing at the time she abducted and tried to kill Kaiser, and not whether defendant consciously or unconsciously disassociated herself from the acts as the kidnapping progressed or later. The trial court could reasonably conclude defendants statements to the victim during the crime shed the most light on her ability to grasp the nature and quality of her acts. The trial court also could reasonably conclude the evidence defendant premeditated finding a baby to claim as her own, put herself in position to kill Kaiser, and acted on a preconceived plan demonstrated she understood the nature and quality of her acts, supporting the trial courts rejection of her claim she became delusional at the moment of the attempted slaying or thereafter.

Defendant does not raise the alternate, moral prong for insanity except to reiterate Rogers testimony that when a depressive disorder involves psychotic features . . . you get into more problems of knowing right from wrong . . . . This reliance on psychotic features, however, merely repeats the claim the defendant failed to understand the nature and quality of her acts. As discussed, the trial court could reasonably reject this claim. Moreover, defendants recognition Kaiser was too nice to kill and her evident reluctance to complete the deed demonstrate she recognized her conduct was wrong at the time. Other evidence of a culpable mental state include her actions in confining Kaiser out of sight on the floorboards in the front and back seat of her vehicle and her attempts to conceal the nature of her activities from the couple in the hospital parking lot and the responding guards. In sum, the trial court was not required to conclude defendant was insane under either prong of the section 1026.

B. Sentencing

1. Cruel and/or Unusual Punishment

Defendant argues her mental illness renders a prison sentence of any length cruel and/or unusual punishment barred by the federal and state Constitutions. She relies on our Supreme Courts determination that incarcerating a mentally disordered sex offender without adequate treatment violated constitutional norms. (People v. Feagley (1975) 14 Cal.3d 338, 342.) More specifically, she points to her postconviction psychiatric evaluation by the staff psychologist at the California Institution for Women, Dr. Frank M. Meldau, who concluded the Department of Corrections and Rehabilitation cannot adequately provide services because defendant requires a higher level of care than we can provide at the present time. Meldau recommended returning defendant to county custody for transfer to a Department of Mental Health facility or an inpatient psychiatric unit where she [can] receive a more thorough evaluation, and be stabilized in a more appropriate setting.

We observe that section 2684 expressly authorizes the transfer of mentally ill prisoners to a state hospital for treatment, and section 2685 provides that time spent in treatment shall count as part of the prisoners sentence. The record is silent as to defendants current placement but, on appeal, we must make every presumption in favor of the judgment. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Accordingly, we presume defendant was returned to county custody and the trial court acted appropriately on Dr. Meldaus recommendation. (Evid. Code,  664.) If that is not the case, then defendant retains the option of filing a habeas petition or seeking other relief in the trial court, where the necessary factual record may be developed. Counsel for defendant notes that the Penal Code provisions for treatment of mentally ill prisoners are codified in title 1 under the heading Imprisonment of Male Prisoners in State Prisons. (Emphasis added.) We presume appropriate mental health treatment is equally available in practice to women prisoners as to their male counterparts, but if there is any doubt on this score, a habeas corpus petition remains the proper vehicle to litigate such a fact-intensive equal protection claim, rather than on appeal in the first instance.

Defendant also contends her sentence of a life term for attempted murder is unconstitutional as applied to her. She contends the sentence is disproportionately severe for a mentally ill mother of two with no prior criminal record who can be successfully treated and eventually safely released into society . . . . A straight, indeterminate life sentence such as defendant received carries with it the possibility of parole at the seven-year mark. ( 3046; see  664 [providing for life imprisonment for attempted premeditated murder].)

The Eighth Amendment of the United States Constitution prohibits only extreme sentences that are grossly disproportionate; there is no requirement of strict proportionality between crime and sentence. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001.) The test under the state Constitution is whether the punishment is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424.) The defendant must demonstrate the punishment is disproportionate in light of (1) the offense and defendants background, (2) more serious offenses, or (3) similar offenses in other jurisdictions.[3] (Id. at pp. 429-437.) The defendant must overcome a considerable burden to show the sentence is disproportionate to her level of culpability. (People v. Wingo (1975) 14 Cal.3d 169, 174.) As a result, [f]indings of disproportionality have occurred with exquisite rarity in the case law. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.)

We agree with the Attorney General that few crimes are more appalling than attempted matricide to carve a child from the womb, and nothing about the offense itself warrants departure from the penalty for attempted murder. Nor does defendants compromised mental health compel a lesser sentence where the jury determined she harbored the requisite malice aforethought and, as discussed, the trial court reasonably concluded defendant was sane at the time of the offense. Similarly, defendants lack of a prior record is not controlling given the disturbing nature of the crime. (People v. Gonzales (2001) 87 Cal.App.4th 1, 17.) Defendants status as the mother herself of young children and her as-yet undemonstrated progress toward mental health do not bear on the crime as it was committed, but of course remain factors for evaluating her parole eligibility at the appropriate time. We simply cannot say at this juncture that the mandatory minimum or actual period defendant will serve in prison or in treatment at the state hospital violates constitutional strictures.

2. Probation

Defendant contends the trial court abused its discretion by imposing a prison sentence rather than granting probation due to the unusual circumstance of her mental illness. Defendants use of a deadly weapon rendered her presumptively ineligible for probation ( 1203, subd. (e)), but the trial court recognized her mental illness presented an unusual circumstance. (See Cal. Rules of Court, rule 4.413(2)(B) [probation available in interests of justice where defendant suffers from a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment].) The trial court must weigh the unusual circumstance against criteria informing an overall evaluation of the likelihood that the defendant will live successfully in the general community. (Advisory Com. com., Cal. Rules of Court, rule 4.414; see rule 4.413(b); accord,  1202.7 [criteria bearing on probation].) The defendant bears a heavy burden . . . in attempting to show an abuse of discretion in denying a request for probation. (People v. Marquez (1983) 143 Cal.App.3d 797, 803.)

Defendant argues probation was required because she was undoubtedly mentally ill, hospitalization was necessary, there was an outpouring of promised support [from friends and family], and housing in a correctional setting was inappropriate. As discussed, however, defendant while in custody is eligible for treatment at the state hospital, which may be her best option to obtain needed help. The trial court could reasonably conclude defendant and her supporters lacked the expertise and resources to deal with her mental illness. None recognized the depth of her problems before the incident, or sought her hospitalization when she decompensated during a stint on bail. Rogers observed the nature of [defendants] problems suggests that treatment would be fairly challenging, with a difficult treatment process and the probability of reversals. Given the demonstrated, serious risk of armed violence defendant posed to victims of extreme vulnerability like Kaiser, the trial court could reasonably conclude probation posed a substantial risk to the community. (Cal. Rules of Court, rule 4.414(a)(1)-(9) & (b)(8).) We discern no abuse of discretion.

3. Consecutive Sentence

Defendant contends section 654 precludes the consecutive eight-month sentence the trial court imposed for her criminal threats conviction. Section 654, subdivision (a), reads 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. The seminal case of Neal v. State of California (1960) 55 Cal.2d 11, 19-20, construed section 654 to prohibit not only multiple sentences where a single act violates more than one statute, but also where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct with a single intent and objective. (See People v. Latimer (1993) 5 Cal.4th 1203, 1208 (Latimer) [criticizing Neal but reaffirming it as established law].)

Whether section 654 applies in a given case is a question of fact for the trial court. (Latimer, supra, 5 Cal.4th at p. 1208.) We review the trial courts determination in the light most favorable to the sentence imposed and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Under section 654, a course of conduct divisible in time . . . may give rise to multiple violations and punishment. [Citations.] (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; see, e.g., People v. Kwok (1998) 63 Cal.App.4th 1236, 1253-1254.) And consecutive punishment may be imposed where the defendant has the opportunity to reflect and terminate his illegal behavior but chooses to proceed, thereby aggravating the violation of public security or policy already undertaken. (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
Here, the final threats defendant made to kill Kaiser support the trial courts imposition of a consecutive sentence. Defendant had stabbed her victim hours before and after confining her first to the front seat floorboard and later in the back seat, the pair returned to the St. Jude Hospital parking lot sometime before 1:00 a.m. Kaiser complained of exhaustion and uncertainty as to defendants plans. Instead of terminating the abduction, defendant renewed her threat to kill Kaiser and embellished those threats with details designed to terrorize her victim. She informed Kaiser the crime was not random but rather premeditated for she knew Kaisers appointment schedule, and she also stated she intended to perform a caesarian section.

The purpose of section 654 is to insure that a defendants punishment will be commensurate with his [or her] culpability. (People v. Perez (1979) 23 Cal.3d 545, 552.) The trial court could reasonably conclude defendant deserved a harsher punishment than if she had not made these threats. After a long period for reflection following the stabbing and initial abduction, defendant chose to aggravate her offenses rather than mitigate them. The threats were not spontaneous or uncontrollable and defendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, [s]he voluntarily resumed [her] . . . assaultive behavior. [Citation.] (People v. Trotter (1992) 7 Cal.App.4th 363, 368.) In sum, substantial evidence supports imposition of the consecutive sentence.

III

DISPOSITION

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

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[1] All further statutory references are to this code, unless specified otherwise.

[2] According to defendant in her statement to police, Kaiser complained about fat lazy Blacks and wet-backs who feed off of other people. Defendant is African-American. Kaiser denied making any such statement.

[3] Defendant bases her claim only on the first prong.