P. v. Ward
Filed 11/19/13 P. v. Ward CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
DELANIOUS AUBRA WARD,
Defendant and Appellant.
C070462
(Super. Ct. No. 11F00913)
Leslie
Ligons and defendant Delanious Aubra Ward began as friends, but over time their
relationship deteriorated. Defendant
left numerous threatening messages on the phone Ligons shared with her longtime
companion, James Dalbert. Defendant’s
threats escalated and he made several trips to the couple’s home. Ultimately, defendant pulled a knife and
began to tussle with Dalbert. Dalbert
and Ligons both suffered stab wounds.
An
information charged defendant with making criminal threats, misdemeanor
vandalism, and assault with a deadly
weapon. (Pen. Code, §§ 422, 594,
subd. (a), 245, subd. (a)(1).)
name="_ftnref1" title="">[1] The jury convicted defendant of all counts
except misdemeanor vandalism. Sentenced
to state prison for a determinate term of 65 years plus four consecutive terms
of 25 years to life, defendant argues he received ineffective assistance of
counsel, sentencing error, and erroneous calculation of
FACTUAL AND PROCEDURAL BACKGROUND
In February 2011 officers
responded to a 911 call reporting a stabbing involving Ligons and Dalbert. Subsequently, an amended information charged
defendant with making criminal threats (counts one & five), misdemeanor
vandalism (count two), and assault with a deadly weapon (counts three &
four.) The information alleged that in
conjunction with count three defendant had personally inflicted great bodily
injury on the victim, Leslie Ligons, and with respect to count four had
personally inflicted great bodily injury on the victim, James Dalbert, who was
70 years of age and older. (Former § 12022.7,
subds. (a), (c).)
The amended
information also alleged that defendant had three prior strikes pursuant to
sections 667, subdivisions (b) through (i) and 1170.12. The prior strikes included two convictions
for lewd and lascivious acts with a child and one for voluntary
manslaughter. The information alleged
these convictions were serious felonies under section 667, subdivision (a). (§§ 288, subd. (a), 192, subd. (a).) The information also alleged two prior prison
commitments pursuant to section 667.5, subdivision (b).
A jury
trial followed. The following evidence
was adduced at trial.
The Relationships
Dalbert and Ligons, who
considered themselves married, lived together in Sacramento. Dalbert and Ligons had been a couple for
approximately nine years.
Ligons and
defendant became friends about five years prior to trial. Over the years, their relationship
deteriorated. Ligons believed defendant
was obsessed with her and jealous of Dalbert.
Dalbert
only knew defendant through Ligons.
Ligons and Dalbert shared the same cell phone.
The Threats Begin
Defendant
began calling Ligons and Dalbert’s cell phone and leaving messages. Defendant called Ligons a bitch and said he
was going to “kick [her ass],†and “he was gonna kill [Ligons] and kill Mr.
Dalbert.†Defendant would sometimes call
back and apologize for his behavior. The
calls made Ligons feel threatened and angry.
On January 31, 2011, defendant called
the cell phone and said he was coming to Ligons’s home to kill her “if it took
a year or two years.†Defendant demanded
Ligons return his “stuff.†Ligons did
not know what he was talking about and said she was going to call the police.
When
Dalbert asked defendant where he was, defendant told him to look out the
window. Dalbert looked out and saw
defendant coming down the street with his pit bull. Defendant stopped across the street and
screamed threats that he would kill Ligons.
Ligons also
saw defendant and his dog across the street from her house, “[r]anting and
raving†and threatening to kill both Ligons and Dalbert. Defendant said he was going to set Ligons’s
house on fire and break all the windows.
Ligons
called the police. The 911 call was
played for the jury. Defendant left
before the police arrived.
Defendant
returned the following day. Ligons heard
the doorbell, heard defendant threatening to kill her, and heard him banging on
the security screen. After defendant
left, Ligons discovered the side of the security screen had been kicked in and
the lock was damaged. Defendant smashed in
the mailbox and slashed a window screen.
The Stabbing
The following day defendant left
more threatening messages on the cell phone.
Defendant said he was on his way to their home and was going to kill
Ligons. Dalbert and Ligons saw defendant
walking down the street. He arrived and
began ranting and raving, and calling Ligons names. Dalbert asked defendant to leave.
Ligons went
outside. Defendant pulled out a knife
and threw it into the grass. Ligons told
him she was going to call the police.
Defendant
grabbed the knife, and he and Dalbert began to struggle. Ligons saw blood and knew Dalbert had been
stabbed. When Ligons attempted to
intervene and protect Dalbert, defendant stabbed her in the shoulder.
Dalbert
used a mop handle to knock the knife out of defendant’s hand. Dalbert hit defendant in the head, and Ligons
ran into the house to call 911. Ligons
gave police defendant’s address. Dalbert
picked up the knife and brought it in the house. When officers arrived, Dalbert told them
where the knife was and gave them the handle he had used to fight off
defendant.
Dalbert
bled profusely from the cut on his cheek and was taken to the hospital by
ambulance. His wound required 64
stitches, caused nerve damage and dental problems, and impacted his
speech. Ligons also went to the hospital,
where her shoulder was stitched up.
name="_ftnref4" title="">[4]
Defendant’s Arrest
When an
officer arrived, he found a blood trail from the street, up the driveway, to
the kitchen. Blood “trailed off down the
sidewalk†as well. The officer
encountered the wounded Dalbert and Ligons, requested medical aid, and
questioned the pair. They identified the
knife.
Another
officer saw defendant walking nearby and thought he might be involved in the
incident. Defendant appeared to have
blood on his shirt, face, and hands.
Defendant told the officer that Dalbert and Ligons had beaten him
up. An ambulance took defendant to the
hospital.
At the
hospital, after being advised of his Miranda
rights,
title="">[5]
defendant told officers that Ligons had been at his house on January 31, 2011,
and had stolen his hair clippers, worth $50 or $60. He went to Ligons’s house to get his money
back.
When
defendant arrived at Ligons’s house, Ligons and Dalbert came out and asked him
to get rid of his knife. Defendant took
his knife out of his pocket and threw it onto the grass. After defendant gave up his knife, Ligons and
Dalbert beat him with a wooden cane. The
only provocation was defendant’s request for reimbursement.
According
to defendant, he never retrieved the knife or stabbed anyone. He had no idea how Ligons and Dalbert were
injured. He left when the pair told him
they were calling the police.
Defendant in the Hospital
A hospital
emergency room nurse testified that after his admission, defendant was belligerent,
cursing, angry, and making inappropriate comments. Defendant made threats and said, “I’m gonna
go back and kill that mother fucker.†An
officer at defendant’s bedside also heard defendant make the statement; defendant
was agitated and angry.
Another
nurse who treated defendant described him as combative, yelling and cursing at
the staff. The staff treated defendant
for a cut on his forehead and put on a neck brace. Defendant tried to remove the brace and get
off of the gurney. Although he was
handcuffed to the bed, it took additional medical staff to restrain him.
Additional Evidence
Kenneth
Rapier knew defendant. He last saw
defendant prior to the stabbing incident, when defendant came to his house to
show him his dog. Defendant appeared to
have been drinking but did not seem intoxicated. Rapier later saw defendant walking his
dog. As Rapier drove by, defendant
shouted out, asking where “the girl†lived.
Defendant also called the woman he was asking about a derogatory name.
Rapier told
a district attorney’s investigator that defendant appeared to be “high.†Defendant told Rapier his shaver was missing
and he believed Ligons had taken it.
Rapier also testified that Ligons said she and defendant had an intimate
relationship. He had seen Ligons at
defendant’s home on several occasions.
Defense Case
A detective
spoke with Ligons on March 1, 2011.
Ligons told the detective she had received unwanted phone calls from
defendant at some point in the past, prompting her and Dalbert to relocate.
On February
1, 2011, defendant came to her home and pounded on the door, but she did not
see him actually damage the mailbox or the door. As for the stabbing incident, Ligons stated
she had received a threatening phone call from defendant and saw him walking
down the street with a knife. Defendant
and Dalbert struggled, and Ligons hit defendant with a cane. Defendant stabbed her in the shoulder. Dalbert hit defendant with a metal object,
and defendant stabbed Dalbert in the face.
During
cross-examination, the detective testified Ligons appeared confused about the
sequence of events. The detective’s
report described Ligons as unclear as to the exact order of events.
Lynn
Richards, a neighbor of defendant, identified photographs of Ligons that showed
Ligons in defendant’s bedroom. Ligons
told Richards that defendant was her lover; Richards had seen Ligons enter
defendant’s home at night. Ligons also
said she told Dalbert she was not seeing defendant even though she was.
During
cross-examination, Richards stated that on the day of the stabbing she spoke
with defendant and he appeared to have been drinking. Defendant was angry because his hair clippers
were missing and he believed Ligons was the thief.
Julie
Scott, who knows both Ligons and defendant, testified Ligons told her that she
and defendant had a romantic relationship.
Ligons said the relationship had endured for four years. Scott also testified Dalbert knew about the
relationship, and she saw Dalbert and Ligons argue about it. Scott had been previously convicted of child
cruelty, assault with a deadly weapon, and theft.
Verdict and Sentencing
The jury
found defendant guilty on all counts except count two, misdemeanor
vandalism. With respect to count three,
the jury found defendant had not inflicted great bodily injury on Ligons, but
with respect to count four found that defendant had inflicted great bodily
injury on Dalbert. The court found
defendant had suffered three prior strikes.
The court
sentenced defendant as follows: count one,
making criminal threats, 25 years to life; count three, assault with a
deadly weapon, 25 years to life; count four, assault with a deadly weapon, 25
years to life; and count five, making criminal threats, 25 years to
life. In addition, the court sentenced
defendant to an additional five years under former section 12022.7, subdivision
(c). The sentences are to be served
consecutively.
The court
also sentenced defendant to an additional five years for each of his three
prior convictions and ordered the enhancements to be imposed individually as to
each of the three strikes counts. The
court did not impose sentence for the two prior prison term commitments. Defendant’s total sentence is a determinate prison
term of 65 years and four consecutive indeterminate terms of 25 years to
life. Defendant filed a timely notice of
appeal.
DISCUSSION
Ineffective Assistance of Counsel
Defendant
argues counsel performed ineffectively in failing to object under Evidence Code
sections 352 and 1101 to the admission of the threat he made in the hospital, “
‘I’ll go back and kill that motherfucker.’ â€
Defendant also faults defense counsel for failing to request a limiting
instruction once the statement was admitted.
Background
Prior to
trial, defense counsel asked that some of defendant’s statements in the
hospital be excluded. The trial court
agreed to exclude several statements.
Defense
counsel argued defendant’s statement, “ ‘I’ll go back and kill that
motherfucker,’ †was irrelevant. Defense
counsel reasoned: “Now, we have to
remember what’s happened at this point.
He’s in -- there is some sort of altercation between my client and the
two complaining witnesses here. My
client has this -- was struck very hard on the head. In fact, I think the court might be able to
see that he still has that scar on his head from the blow that he
received. [¶] If he at that point is angry and says, ‘I’ll
go back and kill that motherfucker,’ that is a statement, if said and if believed,
expressing his feeling 30 minutes after the event. The fact that he might be angry and might
wish them ill is not relevant to what his state of mind was at the time of the
event.â€
The
prosecution responded: “Well, I believe
that might be his argument for the jury.
It’s highly relevant to his state of mind at the time of the event; I
mean, especially when you have a [section] 422 charge and a specific element
that must be proven is the defendant’s intent that the statement be taken as a
threat. [¶] The jury is being asked to get into his mind,
and what better way to get into his mind than to hear and see what he is doing
in the time surrounding the event in the moments before and the moments
after.†The trial court ruled: “I find that that statement is relevant, and
it is admissible.â€
During
trial, the prosecution asked the court to revisit its ruling on the other
statements defendant made at the hospital.
The court again found the evidence inadmissible under Evidence Code
section 352.
Discussion
To
establish ineffective assistance of counsel, a defendant must show counsel’s
performance was deficient and fell below an objective standard of
reasonableness, and it is reasonably probable that a more favorable result
would have been reached absent the deficient performance. (Strickland
v. Washington
668, 687-688 [80 L.Ed.2d 674].) A
reasonable probability is a “probability sufficient to undermine confidence in
the outcome.†(
In
addition, we review a trial court’s decision on the admissibility of evidence
under the abuse of discretion standard.
We reverse only if the court acted in an arbitrary, capricious, or
patently absurd manner that resulted in a miscarriage of justice. (People
v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
According
to defendant, defense counsel’s failure to object under Evidence Code sections
352 and 1101, and failure to request a limiting instruction once the trial
court admitted his hospital statement, deprived defendant of the effective
assistance of counsel, thereby violating his rights under the Sixth Amendment to
the United States Constitution.
Defendant further argues there could be no reasonable tactical basis for
defense counsel’s failure to object, and defendant was prejudiced by the
admission of the hospital threat.
Any
objection by defense counsel based on Evidence Code section 352 would have been
futile. Defense counsel objected on
grounds of relevance, and the trial court rejected the challenge.
Under
Evidence Code section 352, the trial court enjoys broad discretion in assessing
whether the probative value of particular evidence is outweighed by concerns of
undue prejudice, confusion, or consumption of time. Even though the record must show the trial
court weighed prejudice against probative value, we may infer the necessary showing
from the record in the absence of an express statement by the trial court. (People
v. Prince (2007) 40 Cal.4th 1179, 1237.)
Defendant
was charged with making criminal threats against Ligons, and with assaulting
Ligons and Dalbert with a knife. Defendant
told police he was attacked by Ligons and Dalbert and that he had abandoned his
knife in the grass. Defendant’s comments
to the nurse at the hospital, a continuation of his threats against Ligons, were
probative of his state of mind. Nor was
the statement more inflammatory than his threats made prior to the
stabbing. The trial court did not abuse
its discretion in finding the statement admissible under Evidence Code section
352.
Defendant
also argues defense counsel should have objected under Evidence Code section
1101, subdivision (b). According to
defendant, the “evidence did not logically tend to prove the ‘intent’ as to the
charged threats, was not offered on a material issue in the case, and was
overwhelmingly cumulative on the issue of [defendant’s] threats and
intent.†However, nothing in the record
supports defendant’s contention that the threat defendant uttered to the nurse
was admitted under section 1101, subdivision (b), evidence of prior uncharged
acts. The court admitted the statement
purely on relevance grounds. Therefore,
any objection under section 1101 would also have been futile.
Consecutive Sentences
Defendant
challenges the court’s decision to sentence him to consecutive sentences,
contending the court erred in “failing to understand that the
concurrent/consecutive determination is governed by the pertinent Three Strikes
law provisions.†As a consequence,
defendant requests the matter be remanded for resentencing.
Background
At
sentencing the trial court provided a lengthy explanation of its sentencing
decisions. The court reviewed
defendant’s extensive criminal record and declined to exercise its discretion
and strike a prior conviction.
The court
found numerous circumstances in aggravation.
The crime involved great violence, great bodily harm, and other acts
disclosing a high degree of callousness.
The crime indicated planning: defendant
went to Ligons’s house armed with a knife.
Defendant’s conduct indicates he is a serious danger to society. Defendant has prior convictions of increasing
seriousness. Finally, defendant’s prior
performance on parole was unsatisfactory.
(California Rules of Court, rule 4.421(a)(1), (8) & (b)(1), (2), (5).)
The court
then sentenced defendant to 25 years to life on counts one, three, four, and five. The sentences are to run consecutively “in
that each of the crimes and their objectives were predominantly independent of
each other, pursuant to Rule of Court 4.425(a)(1).â€
Discussion
Defendant
contends the trial court did not understand its discretion under the three
strikes law to impose concurrent rather than consecutive sentences. However, stripped to its essence, defendant’s
argument is that the offenses were committed on the same occasion or arose from
the same set of operative facts.
Therefore, consecutive sentences were not warranted and resentencing is
required.
Under the three
strikes law, section 667, subdivision (c)(6) and (7) provides: “(6) If there is a current
conviction for more than one felony count not committed on the same occasion,
and not arising from the same set of operative facts, the court shall sentence the
defendant consecutively on each count pursuant to subdivision (e). [¶] (7) If
there is a current conviction for more than one serious or violent felony as
described in paragraph (6), the court shall impose the sentence for each
conviction consecutive to the sentence for any other conviction for which the
defendant may be consecutively sentenced in the manner prescribed by law.â€
Section
667, subdivision (c)(6) mandates consecutive sentences for any current felony
convictions “ ‘not committed on the same occasion, and not arising from the
same set of operative facts.’ †(
24 Cal.4th 219, 222-223 (Lawrence).) Conversely, consecutive sentences are not
mandatory if the current felony convictions are committed on the same occasion
or arise from the same set of operative facts.
(People v. Deloza (1998) 18
Cal.4th 585, 591 (Deloza).)
The Supreme
Court found that “same occasion†refers to a close temporal and spatial
proximity between the acts underlying the convictions. (Deloza,
supra, 18 Cal.4th at p. 594.)
In
robberies simultaneously in a furniture store.
One victim approached the defendant as he was robbing the other
three. The court concluded defendant’s
“criminal activity was not thereby interrupted, but merely continued with her
as an additional victim.†(
596.) Therefore, the offenses occurred
on the same occasion within the meaning of the three strikes law and
consecutive sentences were not mandatory.
(Id.
The court reached
the opposite conclusion in Lawrence,
nearby fence. The homeowner chased and
tackled the defendant. The two men
fought until the homeowner’s girlfriend approached them with a baseball bat. The defendant struck the girlfriend in the
head with the bottle. (
The
and temporal proximity test and concluded the aggravated assault against the
girlfriend that took place two to three minutes after the theft from the market
at a spot one to three blocks away was not committed on the same occasion as
the theft within the meaning of section 667, subdivision (c)(6). (Lawrence,
supra, 24 Cal.4th at p. 229.) In addition,
the court set forth several factors to consider in applying the test: “[T]he nature and elements of the current
charged offenses—for example, the extent to which common acts and elements of
such offenses unfold together or overlap, and the extent to which the elements
of one offense have been satisfied, rendering that offense completed in the
eyes of the law before the commission of further criminal acts constituting
additional and separately chargeable crimes.â€
(Id. at p. 233.)
Defendant
faults the trial court for not clearly articulating its authority under the
three strikes law to impose consecutive sentences. However, we presume the trial court was aware
of and followed the applicable law in imposing sentence. (People
v. Mosley (1997) 53 Cal.App.4th 489, 496.) In order to overcome this presumption,
defendant must affirmatively demonstrate error.
(People v. Sanghera (2006) 139 Cal.App.4th
1567, 1573.) Defendant cannot meet this
burden.
There is no
reason to suspect the trial court was unaware of its authority, as we have
discussed, or its discretion to determine whether sentences are to run concurrently
or consecutively. In the absence of a
clear showing of abuse, we may not disturb the court’s exercise of its
discretion. The court abuses its
discretion when, after considering all the circumstances, its sentencing
decision exceeds the bounds of reason. (
20.) We presume the court considered the
relevant criteria in the California Rules of Court in deciding whether to
impose consecutive or concurrent sentences.
(California Rules of Court, rule 4.425.)
The trial
court listed numerous factors in aggravation and specifically cited the
appropriate California Rules of Court on which it based its decision to
sentence defendant consecutively. With
respect to counts one and five, the court noted the crimes were predominately
independent of one another. The two
counts of criminal threats were committed on different days. Counts three and four, the assaults on Ligons
and Dalbert, were committed against two different victims. The court’s listing of aggravating factors,
along with defendant’s criminal history and the recommendation of the probation
department, all support the court’s decision to impose consecutive
sentences. We find no error.
Section 654
Defendant
asserts that section 654 prohibits multiple punishment for counts one, three, and
five, and the five year former section 12022.7, subdivision (c) personal
infliction of great bodily injury enhancement attached to count four. Accordingly, defendant argues the punishment
for two of the counts and the enhancement should be stayed.
Background
Defendant
had a prior conviction for voluntary manslaughter (§ 192, subd. (a)) and two
prior convictions for lewd and lascivious acts with a child (§ 288, subd.
(a)). The court sentenced defendant on
count one, making criminal threats, to 25 years to life; on count three,
assault with a deadly weapon, to 25 years to life; and on count five, making criminal
threats, to 25 years to life. In
connection with count four, assault with a deadly weapon, the court sentenced
defendant to 25 years to life and an additional five years under former section
12022.7, subdivision (c). All sentences
are to be served consecutively.
Discussion
Section
654, subdivision (a) 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 for the longest
potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.â€
Under section 654, if the offenses are incidental to one objective,
the defendant may be punished for any one of them, but not for more than
one. Conversely, if the evidence reveals
the defendant entertained multiple criminal objectives independent of one
another, the court may impose punishment for
pursuit of each objective even if the violations shared common acts or were
parts of an otherwise indivisible course of conduct. (People
v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
Here,
defendant committed four discrete, independent acts. In count one, defendant made criminal threats
on January 31, 2011, against Ligons. In
count five, defendant made criminal threats on February 2, 2011, against
Ligons. Count three refers to defendant’s
stabbing Ligons, and count four refers to defendant’s attack on Dalbert, both
of which also occurred on February 2, 2011.
Defendant
argues counts one, three, and five “constitute an indivisible course of conduct
pursuant to one objective -- [defendant] was angry because he believed Leslie
stole property from him.†We disagree.
Count one
occurred on a different day than the other three counts. On January 31, 2011, defendant called Ligons
and threatened to kill her. On February
2, 2011, defendant called Ligons and told her he was on the way to her house
and was going to kill her. Defendant
arrived at the house and stabbed both Ligons and Dalbert. Although two of the counts involved criminal
threats by defendant against Ligons, they occurred on different days. In the first, defendant demanded his property
back and threatened Ligons. In the
second, defendant announced his intent to come to Ligons’s house and harm her. Section 654 does not bar punishments for
counts one, three, four, and five.
Defendant
also contends section 654 bars punishment for both count four, assault with a
deadly weapon against Dalbert, and the former section 12022.7, subdivision (c)
enhancement for inflicting great bodily injury on the victim, who was 70 years of
age or older. Defendant asserts both
were based upon the very same act, and defendant had already been punished for
count four. Since section 654 applies to
enhancements, his five-year sentence for the enhancement must be stricken.
The interplay
of section 654 with enhancements was explored by the Supreme Court in
(Ahmed). The court determined courts “should first
examine the specific sentencing statutes.
If, as is often the case, these statutes provide the answer, the court
should apply that answer and stop there.
Because specific statutes prevail over general statutes, consideration
of the more general section 654 will be unnecessary.†(Ahmed,
punishment “[o]nly if the specific statutes do not provide the answer.†(Ahmed,
applied to multiple enhancements for a single crime, section 654 bars multiple
punishment for the same aspect of a
criminal act.†(Ahmed, at p. 164.)
Here, we
consider former section 12022.7, subdivision (c), which states: “Any person who personally inflicts great
bodily injury on a person who is 70 years of age or older, other than an
accomplice, in the commission of a felony or attempted felony shall be punished
by an additional and consecutive term of imprisonment in the state prison for
five years.†The enhancement was found
true in connection with defendant’s offense of assault with a deadly weapon on Dalbert.
Former section
12022.7 is “a narrowly crafted statute intended to apply to a specific category
of conduct. It represents ‘a legislative
attempt to punish more severely those crimes that actually result in great
bodily injury.’ [Citations.]†(People
v. Chaffer (2003) 111 Cal.App.4th 1037, 1045.) The five-year enhancement under former section 12022.7
is imposed because of the age and vulnerability of the victim, a different
aspect of the crime from the simple fact of great bodily injury. Under the test set forth in
punishment under former section 12022.7.
Abuse of Discretion in Sentencing
Defendant
contends the trial court abused its discretion in relying on California Rules
of Court, rule 4.425(a)(1) for imposing consecutive sentences on each 25-years-to-life
count. According to defendant, “on this
record, the trial court’s finding that each of [defendant’s] crimes and
objectives were independent, is irrational.â€
California
Rules of Court, rule 4.425 lists the criteria the trial court may consider in
determining whether to impose consecutive rather than concurrent
sentences. Rule 4.425, subdivision
(a) provides: “(1) The crimes and their objectives were
predominantly independent of each other; [¶]
(2) The crimes involved separate
acts of violence or threats of violence; or [¶] (3)
The crimes were committed at different
times or separate places, rather than being committed so closely in time and
place as to indicate a single period of aberrant behavior.†Rule 4.425, subdivision (b) provides, in part: “Any circumstances in aggravation or
mitigation may be considered in deciding whether to impose consecutive rather
than concurrent sentences, except: [¶] (1) A
fact used to impose the upper term; [¶] (2)
A fact used to otherwise enhance the
defendant’s prison sentence; and [¶] (3)
A fact that is an element of the crime
may not be used to impose consecutive sentences.â€
In
considering whether to impose consecutive sentences, rule 4.425 of the
California Rules of Court provides criteria to guide the trial court in making
the determination. In contrast, section
654 operates to bar punishment in certain cases. The statute and the rule of court do not
conflict. Nor is the rule of court
irrational.
Here, the
court noted numerous circumstances in aggravation and also found the offenses
were predominantly independent. We find
no abuse of discretion. Counts one and
five involve criminal threats that occurred on different days. Counts three and four involve different
victims.
Custody Credits
Finally,
defendant argues the trial court erred in calculating his custody credits. According to defendant the court used the
wrong date and “the abstract should be corrected to reflect: (1) 387 days of actual custody; (2) 58 days of
conduct credit; and (3) a total of 445 days of credit.â€
At
sentencing, the court awarded defendant 377 days of actual credit plus 56 days
of good time/work time credit, for a total award of 433 days’ credit for time
served. A few months later, defendant
contacted the court and requested a correction.
The court issued an amended abstract of judgment and a minute order
awarding defendant 387 days of actual custody credit and 58 days of conduct
credit, for a total of 445 days of credit.
As defendant acknowledges, the amended abstract of judgment renders his
argument moot.
DISPOSITION
The
judgment is affirmed.
RAYE , P. J.
We concur:
BLEASE , J.
BUTZ , J.
name="_ftn1" title="">[1] All further references are to the Penal Code
unless otherwise designated.
name="_ftn2" title="">[2] Dalbert thought the incident occurred prior
to the incident with the pit bull.
