Filed 8/7/17 P. v. Whitfield CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

CLYDE WILLIAM WHITFIELD,

Defendant and Appellant.
H043652
(Monterey County
Super. Ct. No. SS132445)

STATEMENT OF THE CASE
An information charged defendant Clyde William Whitfield with the following crimes: attempted murder (Pen. Code, §§ 664/187, subd. (a); Count 1), assault by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4); Counts 2 and 5), false imprisonment by violence (Pen. Code, § 236; Count 3), criminal threats (Pen. Code, § 422, subd. (a); Count 4), dissuading a witness by force or threat (Pen. Code, § 136.1, subd. (c)(1); Count 6), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); Count 7), and vandalism (Pen. Code, § 594, subd. (b)(2)(A); Counts 8 and 9). As to Count 2, the information alleged that defendant inflicted great bodily injury under circumstances involving domestic violence (Pen. Code, § 12022.7, subd. (e)). The information also alleged that defendant had a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)) and a prior strike conviction (Pen. Code, § 1170.12, subd. (c)(1)).
The case proceeded to a court trial. The trial court acquitted defendant of attempted murder and found him guilty on the remaining counts. The trial court found the prior conviction allegations to be true, and it found the great bodily injury allegation to be not true. The trial court sentenced defendant to a total prison term of 20 years 4 months.
Defendant now appeals from the judgment of conviction. On appeal, defendant contends that his trial counsel rendered ineffective assistance by failing to object to evidence and argument regarding his selective post-Miranda silence. Defendant also contends that Penal Code section 654 barred the trial court from imposing separate prison terms for Counts 2, 3, 4, 5, and 6. As set forth below, we affirm the judgment of conviction.
STATEMENT OF THE FACTS
The Prosecution’s Evidence
Jane Doe dated defendant from 2010 to 2013. In 2013, Jane Doe became concerned about defendant’s drug use and “paranoid” behavior.
Defendant and Jane Doe went out to dinner on Friday, November 29, 2013. After dinner, they went to defendant’s apartment, and Jane Doe fell asleep.
Jane Doe woke up “before midnight.” Defendant told her that he wanted to show her “something that God had given him.” He then said that he “was at a bus stop and found a little SD card on the ground.” Defendant showed Jane Doe pictures of men on his cell phone, and he accused her of “cheating on him.” Jane Doe denied cheating. Defendant straddled Jane Doe on the bed, struck her across the face, and accused her of lying. Immediately after defendant hit Jane Doe, she could not hear out of her left ear and felt pain “all down the left side” of her face.
Defendant told Jane Doe she “was not going to get out of there” until she provided names of men with whom she cheated. Defendant choked her and said, “You’re going to tell me or I’m going to kill you.” In order to stop the choking, Jane Doe said she cheated with her ex-husband, Steve. Defendant got off of Jane Doe and said, “You’re just a whore.” Jane Doe tried to get off the bed and leave, but defendant told her to not get off the bed. Defendant then called her a “whore” again and told her to leave. Jane Doe started to walk out of the bedroom, but defendant grabbed her, threw her back on the bed, and told her to not get off the bed. He slapped her, and her glasses flew off.
Defendant accused Jane Doe of cheating with other men, and she began looking for her cell phone. He told her she did not need her phone. He told her if she “tried to call for help” he “would kill [her] before police would even get in the door.” Defendant then said he loved Jane Doe and would never hurt her, and he went into the bathroom. Defendant exited the bathroom, straddled Jane Doe, and pressed a pillow over her face. He said, “You’re going to tell me. There’s more.” Jane Doe squirmed, bucked, and struggled to breathe. Defendant said that he “knew how to not leave marks,” and he put the pillow under Jane Doe’s neck and choked her. As defendant choked Jane Doe, he accused her of cheating and told her he “wanted other names.” Jane Doe said the name “Greg.” Defendant got off of Jane Doe and smoked a cigar.
Defendant was “agitated” and suggested that he and Jane Doe go to Steve’s house. Defendant slapped the right side of Jane Doe’s face, causing pain and loud ringing in her right ear. Defendant straddled Jane Doe, choked her, and said, “There’s more. You’re not going to leave here until I know all of them.” Jane Doe said the name “Phillip.” Defendant began to “calm down,” and Jane Doe thought about ways to escape defendant’s apartment.
Over the course of the attack, Defendant told Jane Doe “[a]t least four times that [she] was not going to get out of there.” He also told her that he was “going to kill [her] and put [her] in the trunk of [her] car and drive it somewhere and burn it up.” At one point during the attack, defendant told Jane Doe he was going to hold her until Monday and make her pay his rent.
Defendant went into the bathroom alone four or five times during the course of the attack. Each time he stayed inside the bathroom for 45 to 60 seconds. Each time he exited the bathroom, his eyes were “different,” he was sweating, and he seemed “paranoid.” When defendant went into the bathroom the final time, Jane Doe, who was naked, ran out of the bedroom, out the front door, and down the stairs. Defendant followed her and said, “Now I am going to kill you. Get your ass back upstairs.” Jane Doe ran down the street.
Jane Doe flagged down a car. Jane Doe looked “panic stricken.” She told the occupants of the car, “My boyfriend tried to kill me. Please help me.” A passenger in the car called 911 at 2:21 a.m. When police arrived, Jane Doe was “crying,” “shaking,” and “scared.”
At 3:50 a.m., a police officer saw defendant driving Jane Doe’s car. The officer effected a traffic stop, and he detained defendant. Defendant was taken to the police station and interviewed by a police officer, Seth Morten, at 5:00 a.m.
Doctors examined Jane Doe on December 3 and 4, 2013. She complained of chest pain, vision problems, and hearing problems. She had bruising on her chest, neck, and left arm. She had a perforated eardrum. She had a posterior vitreous detachment on her right eye, which caused her to see “floaters.”
During the attack, defendant broke Jane Doe’s glasses. He also broke her tablet computer.

Defense Evidence
Defendant testified on his own behalf. He testified that he and Jane Doe fell asleep together on November 29, 2013. Defendant woke up at 11:42 p.m. His birthday “was coming up at midnight,” so he woke Jane Doe up to “bring in [his] birthday with some sex.” Afterward, Jane Doe accused defendant of “sleeping with someone else.” They argued about monogamy, and defendant explained that Jane Doe had been “acting possessive.”
Defendant testified that Jane Doe “got upset” during the argument and scratched him. Defendant “pinned her down” and told her not to scratch him. Defendant took the SD card out of Jane Doe’s tablet computer and put it in his cell phone. Defendant looked at pictures on his phone, Jane Doe told him that she “slept with Steve,” and defendant broke Jane Doe’s tablet computer. Defendant told Jane Doe that they could not “continue this,” they could not “continue to see each other,” and he was going to move to Thailand. Jane Doe scratched defendant’s face, he pushed her against the wall, and he told her to stop scratching him. Jane Doe, who was naked, walked out of defendant’s apartment. Defendant told her to come inside and put on clothes. Jane Doe “took off running” down the street.
Defendant testified that he called 911. A few minutes after he called 911, defendant got into Jane Doe’s car and drove around to look for her. Defendant eventually parked the car and tried calling Jane Doe’s cell phone. Defendant was unable to reach Jane Doe on her cell phone. Shortly thereafter, police detained defendant.
On cross-examination, defendant admitted that, during his November 30 interview, he told Officer Morten that Jane Doe’s cell phone was at his apartment. Defendant also admitted telling Officer Morten that the fight between him and Jane Doe began at 10:45.

DISCUSSION
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that his trial counsel rendered ineffective assistance in failing to object to evidence and argument pertaining to his interview with Officer Morten. Specifically, defendant contends that defense counsel “provided ineffective assistance of counsel by failing to seek exclusion of [defendant’s] post-Miranda refusal to provide a written statement to police and related omissions and by failing to object when the People argued that it proved his testimony was false.” As set forth below, defendant has failed to show ineffective assistance of counsel.
A. Background
Officer Morten interviewed defendant at 5:00 a.m. on November 30, 2013. At the beginning of the interview, Officer Morten read a Miranda admonishment to defendant.
On cross-examination, the prosecutor asked defendant if he declined to write a “detailed summary” of events during the interview with Officer Morten. Defendant testified that he did not provide a written statement. Defendant explained, “[Officer Morten] was trying to imply details that he wanted me to write.” Later on cross-examination, the prosecutor asked defendant if he agreed that his testimony in court was “a lot more detailed than what [he] told Officer Morten.” Defendant responded, “He was trying to detail it for me.” After defendant confirmed that Officer Morten provided paper and told him to “write out a detailed statement,” the prosecutor asked defendant, “And your response was, ‘How can I fill it out with something that did not happen?’ ” Defendant testified, “That was my statement.” The prosecutor asked defendant if he then “got a little upset” and told Officer Morten he was “not being fair.” Defendant responded, “Yes, ma’am.” The prosecutor asked defendant whether he accused Officer Morten of “only believing Jane Doe.” Defendant responded, “Yes, ma’am.”
The prosecutor called Officer Morten as a rebuttal witness. During his rebuttal testimony, Officer Morten testified that he gave defendant an opportunity to write a statement during the interview, he advised defendant of “the importance of getting his side of the story out on paper,” and defendant “refused to provide a written statement.” Officer Morten testified that, after defendant refused to write a statement, defendant accused Officer Morten of “automatically taking Jane Doe’s side,” “already finding him at fault,” and “treating him unfairly.”
During defendant’s cross-examination testimony and Officer Morten’s rebuttal testimony, the prosecutor elicited differences between defendant’s trial testimony and his statements during the November 30 interview. As pertinent here, defendant’s testimony and Officer Morten’s testimony established that defendant did not provide the following information during the November 30 interview: Jane Doe was possessive, defendant was breaking up with her and moving to Thailand, defendant woke up at 11:42 p.m. wanting sex for his birthday, and defendant took an SD card out of Jane Doe’s tablet and put it into his cell phone.
In her initial closing argument, the prosecutor did not mention defendant’s interview with Officer Morten. Rather, the prosecutor emphasized that the “People’s evidence relies heavily on the testimony of Jane Doe.”
In his closing argument, defense counsel argued that the evidence regarding the interview bolstered defendant’s credibility. Defense counsel argued: “[Defendant] got up on the stand. He testified in a consistent manner to what he told Officer Morten in his brief interview with Officer Morten the day of the incident . . . .” Defense counsel emphasized that defendant “waived his right to Miranda” and answered questions until Officer Morten informed him that he would be arrested. Defense counsel then argued: “[Defendant] at that point didn’t feel like he was in a place where he could tell . . . Officer Morten the full story, but he did tell Officer Morten the gist of what had occurred. And it wasn’t until [defendant] had his day in court that he explained all the full details of what happened that night between him and Jane Doe. [¶] But I think this is quite telling that, in summary, he did tell Officer Morten what had happened. And the People wanted to make a big point about what details he left out . . . , but the reality is Jane Doe left off perhaps more critical facts . . . .”
In her rebuttal argument, the prosecutor briefly mentioned defendant’s interview with Officer Morten. The prosecutor argued: “[Defendant’s] detailed statement here in court is . . . suspect. He testified that he had time to sit back and think; and yes, he did. He had more than two years to sit back and think. And that’s exactly why Officer Morten begged him over and over again, give a detailed statement so your statement is saved and can be seen in court, but he declined. He turned the tables and said, You’re not being fair.”
B. Legal Principles
The defendant bears the burden of proving ineffective assistance of counsel. (People v. Carter (2003) 30 Cal.4th 1166, 1211 (Carter).) “To prevail on an ineffective assistance of counsel claim, appellant must prove two elements: (1) trial counsel’s deficient performance and (2) prejudice as a result of that performance.” (People v. Martinez (2014) 226 Cal.App.4th 1169, 1189, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland ).)
Deficient performance is established “if the record demonstrates that counsel’s performance fell below an objective standard of reasonableness under the prevailing norms of practice.” (In re Alvernaz (1992) 2 Cal.4th 924, 937.) “A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” (Carter, supra, 30 Cal.4th at p. 1211; see also People v. Witcraft (2011) 201 Cal.App.4th 659, 664.) A reviewing court defers to counsel’s reasonable tactical decisions. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) A reviewing court “should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.) “Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight.” (People v. Kelly (1992) 1 Cal.4th 495, 520.)
Prejudice is established if “there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003 (Cunningham).) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.)
A defendant who raises the issue on appeal must establish ineffective assistance “based upon the four corners of the record.” (Cunningham, supra, 25 Cal.4th at 1003.) Where the record on appeal “does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 569.)
C. Defendant Has Failed to Show Ineffective Assistance of Counsel
Here, defendant cannot show deficient performance. In making his claim of ineffective assistance of counsel, defendant argues that evidence regarding his omissions in his interview with Officer Morten and evidence of his failure to provide a written statement during that interview were inadmissible. We need not determine the admissibility of such evidence, however, because the record provides a valid tactical reason for defense counsel’s failure to object to that evidence and argument regarding that evidence.
Defense counsel could have reasonably concluded that defendant’s omissions during his interview and defendant’s failure to provide a written statement during that interview were helpful to the defense. The circumstance that defendant was not completely forthcoming with Officer Morten arguably suggests that Officer Morten was biased against defendant. Such bias would in turn suggest a police investigation that was unfair. Indeed, the testimony now challenged showed that defendant believed himself to be the victim of an unfair investigation. When the prosecutor asked defendant about his failure to provide a written statement, defendant testified that Officer Morten “was trying to imply details” that should be included in such a statement, Officer Morten was “not being fair,” and Officer Morten was “only believing Jane Doe.” When the prosecutor questioned Officer Morten about defendant’s lack of candor in the interview, Officer Morten testified that defendant accused him of “automatically taking Jane Doe’s side,” “already finding him at fault,” and “treating him unfairly.” The prosecutor’s closing argument acknowledged that defendant believed the police investigation to be unfair. When the prosecutor briefly mentioned defendant’s failure to provide a written statement during her closing argument, she noted that defendant accused Officer Morten of “not being fair.” Given this record, defense counsel could have reasonably determined that the prosecutor’s argument and evidence regarding defendant’s selective silence during the interview helped the defense by suggesting a biased police investigation.
In sum, defendant’s omissions during his interview with Officer Morten and his failure to provide a written statement during that interview arguably suggest a police investigation that was biased against defendant. The record thus provides a valid tactical reason for defense counsel’s failure to object to such evidence and his failure to object to the prosecutor’s brief argument regarding such evidence. Defendant cannot show deficient performance, and his claim of ineffective assistance of counsel fails. (See generally People v. Farnam (2002) 28 Cal.4th 107, 202 [failure to object is not deficient performance where the reviewing court is “not convinced that there could be no valid tactical reason for choosing not to object”].)

II. PENAL CODE SECTION 654
Defendant asserts that section 654 barred the trial court from imposing separate prison terms for Counts 2, 3, 4, 5, and 6 because those offenses were all “committed for the purpose of false imprisonment.” He argues that his “sole criminal objective in uttering threats and committing assaults was to keep Ms. Doe imprisoned.” He further argues that “the assaults and threats were the violence and menace used to keep Ms. Doe imprisoned.” (Italics omitted.) As explained below, section 654 did not bar the imposition of separate prison terms for Counts 2, 3, 4, 5, and 6.
A. Background
In Count 2 defendant was convicted of assault by means likely to cause great bodily injury. In Count 3 defendant was convicted of false imprisonment by violence. In Count 4 defendant was convicted of criminal threats. In Count 5 defendant was convicted of a second count of assault by means likely to cause great bodily injury. In Count 6 defendant was convicted of dissuading a witness by force or threat. The trial court imposed the following prison terms for those counts: a six-year term for Count 2, a concurrent four-year term for Count 3, a consecutive 16-month term for Count 4, a consecutive two-year term for Count 5, and a consecutive six-year term for Count 6.
At sentencing, defense counsel asserted that Counts 2, 3, 4, 5, and 6 were all committed with the “objective of falsely imprisoning [Jane] Doe for the purpose of ferreting out perceived infidelities.” He argued that section 654 therefore barred imposition of sentence on all of those counts. The trial court determined that section 654 did not apply to defendant’s case. The trial court explained in part: “I will find that none of the [counts] are subject to 654 given the length of the course of conduct that [defendant] argues is one single course of conduct. It was multiple individual crimes committed over a three-hour period of time, distinct from each other, so there’s no 654 counts in my conclusion.”
B. Legal Principles and the Standard of Review
Section 654 provides, 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.” (§ 654, subd. (a).) “Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences.” (People v. Deloza (1998) 18 Cal.4th 585, 592 (Deloza).)
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.” (Deloza, supra, 18 Cal.4th at p. 591.) “ ‘Whether 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.’ ” (People v. Latimer (1993) 5 Cal.4th 1203, 1208, italics omitted.) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ ” (People v. Harrison (1989) 48 Cal.3d 321, 335.) Thus, the “principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1134.) A defendant’s criminal objective is “ ‘determined from all the circumstances.’ ” (People v. Braz (1997) 57 Cal.App.4th 1, 10.)
“Moreover, where a course of conduct is divisible in time it may give rise to multiple punishment even if the acts are directive to one objective. [Citation.] If the separation in time afforded defendant[] an opportunity to reflect and to renew [his] intent before committing the next crime, a new and separate crime is committed.” (People v. Louie (2012) 203 Cal.App.4th 388, 399 (Louie).)
“The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) “We review the trial court’s determination in the light most favorable to the respondent 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.)
C. Substantial Evidence Supports the Trial Court’s Ruling
Here, contrary to defendant’s assertion, there were separate acts for each count. As the prosecutor described in her closing argument, each count was based on a distinct act or acts: the blows to Jane Doe’s ears were the assault for Count 2, throwing Jane Doe on the bed when she tried to leave was the false imprisonment for Count 3, the threats to kill Jane Doe were the criminal threats for Count 4, the strangulation was the assault for Count 5, and telling Jane Doe she would die if she called the police was the dissuasion for Count 6. Thus, Counts 2 through 6 were not merely a single act of false imprisonment. (See generally People v. Castro (2006) 138 Cal.App.4th 137, 143 [felony false imprisonment occurred where the defendant grabbed the victim, turned her around, and pulled her toward his car].)
There is substantial evidence that defendant harbored different objectives for each of the five counts. As defendant asserts, the evidence that he held Jane Doe captive for hours certainly shows that he intended to imprison her. The evidence also reveals four other objectives: defendant’s demands that Jane Doe disclose who she was “cheating” with show an intent to discover infidelity; in calling Jane Doe a “whore,” defendant showed an intent to punish Jane Doe for her confessed infidelity; by threatening to kill Jane Doe if she called the police, defendant demonstrated an intent to avoid capture by the police; and by telling Jane Doe he was going to make her pay his rent, defendant showed an intent to take money from Jane Doe. The evidence thus establishes that defendant harbored multiple criminal objectives.
Finally, even if we agreed with defendant’s claim that he harbored a single criminal objective, there is substantial evidence of temporal separation between defendant’s crimes. The evidence showed that defendant attacked Jane Doe over the course of two to three hours. During those hours, he went into the bathroom alone four or five times, each time he stayed inside the bathroom for 45 to 60 seconds, and he continued attacking Jane Doe after leaving the bathroom. Defendant temporarily ceased attacking Jane Doe when she provided the names of men with whom she purportedly had affairs. Defendant changed his mind over the course of the attack: at one point he told Jane Doe to leave and then threw her back on the bed; at one point he told Jane Doe he loved her and would never hurt her, and shortly thereafter he resumed the attack; at one point defendant stated that he should go to the home of Jane Doe’s ex-husband, but defendant did not leave and continued attacking Jane Doe. Given this evidence of temporal separation, defendant had “an opportunity to reflect and to renew” his intent before committing each of his crimes. (Louie, supra, 203 Cal.App.4th at p. 399.)
In sum, the evidence shows that there was a separate act for each of the five counts, defendant harbored a different objective for each crime, and there was temporal separation between the crimes providing defendant an opportunity to reflect and to renew his criminal intent. Section 654 therefore did not bar the imposition of separate prison terms for counts 2, 3, 4, 5, and 6.
DISPOSITION
The judgment is affirmed.



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RUSHING, P.J.






WE CONCUR:






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PREMO, J.






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ELIA, J.