Filed 3/23/18 P. v. Taylor CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

MANSFIELD TAYLOR,

Defendant and Appellant.
D071941



(Super. Ct. No. SCN366213)

APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Kearney, Judge. Affirmed.
Allison L. Ehlert, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Mansfield Taylor of two counts of resisting an executive officer (Pen. Code, § 69; counts 3, 4); one count of battery by gassing (§ 243.9, subd. (a); count 1) and one count of misdemeanor resisting an officer (§ 148, subd. (a)(1); count 5). Taylor admitted three serious/violent felony prior convictions (§ 667, subds. (b)-(i) [strike priors]). Taylor was sentenced to a determinate term of seven years four months in prison. In calculating Taylor's sentence, the court imposed a two-year concurrent term for count 4 (§ 69).
Taylor appeals challenging only the sentence for count 4 (resisting an executive officer at the jail). Taylor contends, for the first time on appeal that the term for count 4 should have been stayed under section 654. Given the absence of objection the record is somewhat sparse, however both the court and the probation officer found section 654 did not apply to the section 69 violation at the jail. Based on our review of the record, it is clear Taylor's act of spitting in a deputy's face was a separate physical act from the later acts of physically fighting with deputies. It was a separate act for a separate purpose, although it arose out of a continuous course of conduct in the jail. Accordingly, we will find no error in the concurrent sentence for count 4.
STATEMENT OF FACTS
Taylor does not challenge the admissibility or the sufficiency of the evidence to support his convictions. Accordingly, we will provide a summary of the evidence to give context for our discussion. We will omit any discussion of the facts relating to Taylor's encounter with Escondido police officers which forms the basis of counts 3 and 4 (§ 69 violations). We will begin with facts relating to Taylor's actions with sheriff's deputies at the jail.
After Taylor was arrested he was transported to the Vista Detention Facility, where he was turned over to San Diego County sheriff's deputies. There, Deputy Kyle Babcock and Deputy Jordan Kouma became involved for purposes of processing Taylor into the jail. Taylor directed his aggressive behavior at the deputies. As Babcock patted appellant for contraband, appellant cleared his throat and spit its contents into Babcock's face. This caused Kouma to take Taylor to the ground. On the ground, Taylor began fighting and kicking at the deputies. A spit sock was place over Taylor's head. He continued to resist and fight as the deputies carried him to a safety cell.
Taylor testified that when the police pulled him over on his bicycle, he thought they were trying to run him over. Taylor did not spit on those officers or deputies. Nor did he grab Officer Jabro's hand. Taylor testified that he was the victim of the Escondido Police Department.
DISCUSSION
Taylor contends the act of spitting in the deputy's face was part of the same conduct as his act of resisting two deputies in the jail, thus the sentence for resisting must be stayed under section 654. The People respond that there were two separate physical acts, i.e., spitting and then physically fighting with deputies who were attempting to process him into the jail. The People also contend the section 654 issue should be deemed forfeited for failure to raise the issue in the trial court. We agree with the People that there were two separate physical acts involved at the jail and the court could have reasonably concluded the act of spitting was to express Taylor's dislike of law enforcement, whereas his act of resisting was to prevent processing him into the jail. We decline to apply forfeiture here because a sentence imposed in violation of section 654 would be an unauthorized sentence. (People v. Scott (1991) 9 Cal.4th 331, 352-354.)
Legal Principles
Section 654 provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides 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 determination of whether the conduct involves a single act or single purpose is usually a factual question to be resolved on a case-by-case basis. (People v. Beamon (1973) 8 Cal.3d 625, 636; People v. Harrison (1989) 48 Cal.3d 321, 335.)
Numerous cases have discussed section 654 over the years. The Supreme Court has undertaken to clarify the standards for application of that section. In People v. Jones (2012) 54 Cal.4th 350, 358, the court held that the starting point was whether the crime involved a single physical act. Only where the crime involves more than a single physical act, should the court then determine whether there was a separate purpose of intent. (People v. Corpening (2016) 2 Cal.5th 307, 311; People v. Mesa (2012) 54 Cal.4th 191, 199.)
Where the trial court has determined there was more than one physical act and that there were separate intents or purposes, we review the court's factual determination under the substantial evidence standard of review. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) We draw all reasonable inferences in favor of the court's factual finding. (Id. at pp. 1312-1313.)
Analysis
Taylor was continually hostile and violent from the beginning of the case when he was contacted by Escondido police officers. He continued his combative and uncooperative behavior in the jail. Counts 1 and 4 involve different physical acts. In count 1 Taylor spit directly into a deputy's face. After spitting at the deputy, a new struggle ensued when the second deputy took Taylor to the ground to subdue him and place a "spit sock" over his head. Taylor then physically fought with the deputies to prevent them from restraining him and to prevent them from placing him into a cell. It is clear there was more than a single physical act involved in the offenses in counts 1 and 4. The question then is what was the purpose of spitting at the deputy? Was it a separate malicious act, or simply part of resisting the deputies in all things.
As we previously noted, there was no discussion of section 654 by the defense at sentencing. As a result, there is only limited discussion of the section in the record. The probation officer reasoned the section did not apply, as did the trial judge. Given Taylor's manifest hostility to all authority, the court could reasonably find that the act of spitting in the deputy's face was intended to harm the deputy and show contempt for authority. The physical acts of fighting with two deputies, which followed, was for the separate purpose of obstructing them in their efforts to carry out their duties. We are satisfied that the record supports the trial court's finding that section 654 did not apply under the facts of this case.
DISPOSITION
The judgment is affirmed.


HUFFMAN, Acting P. J.

WE CONCUR:



HALLER, J.



O'ROURKE, J.