P. v. Woolridge

Filed 9/29/06 P. v. Woolridge CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Superior Court assigned by the Chief Justice pursuant to Art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part.

Scott M. Rand and Randall B. Bookout, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

On appeal, defendant Joshua Todd Woolridge contends the trial court erred by failing to stay his consecutive sentences for several counts under Penal Code^[1] section 654 because the convictions arose from an indivisible course of conduct during which he had a single intent. We affirm in part and reverse in part.

II. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

Defendant and the victim had five children together. They had begun a relationship in 1985 and had married in 1998 but separated the following year. Their divorce was final before September 13, 2004, when the victim was then living with her new fiance. Defendant called the victim around 9:30 that night and threatened to rape and kill her. The victim hung up on him, but defendant called back and repeated his threats. The victim left her home to run an errand and returned home just after 10:30 p.m.

The victim began undressing in a bedroom when she saw defendant shutting the door behind him. He was holding pictures that he had collected from around the house of his and the victim’s children and of the victim’s fiance. The victim sat on the bed and moved toward a corner of it. Defendant quickly grabbed her, choked her with one hand, and held her on the bed. The victim had trouble breathing, but tried to scream, pulled on defendant’s shirt, and tried to push him away. Defendant responded by choking her harder. He shoved a towel in her mouth, and she bit his hand. The mattress started sliding to the floor, and defendant held the victim down, pulled her shorts off, and said he was going to have sex with her. Defendant’s penis was exposed, and he started pressing it into her private area.

The victim continued fighting defendant, but eventually told him she would have sex with him if he let her go so she could “get some air” and go into the bathroom remove a tampon. Defendant checked to confirm she was wearing a tampon and loosened his grip on her. He opened the door, but when the victim moved toward it, he seized her arm. She grabbed the door frame, but defendant pulled her back into the room. The victim broke free and ran into the living room.

The victim unsuccessfully fought defendant off with fireplace tools. She ran to the kitchen and grabbed a knife. A struggle ensued, during which the knife blade broke and defendant’s hand was cut.

Defendant calmed down after the injury and tried to convince the victim to reconcile with him. During this discussion, the victim moved toward the kitchen door, but defendant locked its deadbolt. Defendant returned to the bedroom to retrieve his shorts.

When defendant returned to the kitchen, he was angry again. Holding pictures of the victim’s fiance, defendant said the fiance would not get defendant’s children, and he again threatened to kill the victim. The victim believed defendant was going to kill her. She yelled for help when she heard her neighbors outside sometime between 11:00 and 11:30 p.m. Defendant ran out of the kitchen and left the house through a bedroom window.

When police arrested defendant the next day he had a cut on his hand, scrapes on his chest, what appeared to be blood on his feet, and an apparent bite mark on his shoulder. DNA testing linked defendant to blood found in the kitchen and the bedroom window sill.

The victim suffered a cut on her upper lip, right arm, and right leg.

Defendant denied assaulting the victim. He said he had gone to her house during the day on September 13, at her request, to work on her vehicle. He claimed he had cut his hands while working at other people’s houses that day and again while working at the victim’s home. He said the wound that looked like a bite mark had happened when he was digging out a palm tree earlier that week, and what looked like blood on his feet when he was arrested was tar from roof work he had done. Defendant admitted the blood in the victim’s kitchen and bedroom was his but said he did not know how it got there.

The People charged defendant with assault with intent to commit rape (count 1, § 220), first-degree burglary (count 2, § 459), infliction of corporal injury upon a former spouse (count 3, § 273.5, subd. (a)), false imprisonment by violence (count 4, § 236), assault with force likely to produce great bodily injury (count 5, § 245, subd. (a)(1)), criminal threat (count 6, § 422), and attempted rape (count 7, §§ 664/261, subd. (a)(2)). A jury found defendant guilty on all seven counts and also found defendant had a prior prison conviction. (§ 667.5 subd. (b).)

At sentencing, the trial court designated count 1 as the principal count. The trial court sentenced defendant to a total term of 11 years 8 months, including six years for count 1 and consecutive terms of one year four months for count 2, one year for count 3, eight months for count 4, one year for count 5, eight months for count 6, and one year for the prison prior. Under section 654, the trial court stayed defendant’s sentence of three years for count 7.

III. DISCUSSION

Defendant contends the trial court erred under section 654 in sentencing him to consecutive terms for counts 2, 3, 4, and 5 because the acts constituting those crimes were parts of an indivisible course of conduct during which he had a single intent.

A. Standard of Review

Section 654 proscribes multiple punishments for a course of conduct that violates more than one statute but constitutes an indivisible transaction. (People v. Beamon (1973) 8 Cal.3d 625, 637.) Whether a course of conduct is indivisible under section 654 depends on the intent and objective of the actor. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) “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.” (Ibid.) Therefore, to permit multiple punishments, the evidence must support a finding that the defendant formed a separate intent and objective for each offense for which he was sentenced. (Ibid.) A defendant’s intent and objective are factual questions for the trial court (People v. Adams (1982) 137 Cal.App.3d 346, 355), which may properly infer a defendant’s intent from the circumstances surrounding his act.

The standard of review for defendant’s appeal is substantial evidence. (People v. Blake (1998) 68 Cal.App.4th 509, 512.) Under this standard, we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the facts required to support its decision beyond a reasonable doubt. (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) In this analysis, we must presume the existence of every fact the court could reasonably deduce from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) The trial court’s determination cannot be reversed on appeal unless it is unsupported by evidence presented at trial. (People v. Ferguson (1969) 1 Cal.App.3d 68, 75.)

B. Sentence for Burglary

Defendant argues and the People concede that section 654 requires stay of his sentence for burglary (count 2). (People v. Price (1991) 1 Cal.4th 324, 492, superseded on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1162 [a defendant cannot be punished for both a burglary and the underlying crime he planned to commit while inside the dwelling].) The People do not dispute that defendant’s intention when he entered the victim’s house was to rape her. Thus, section 654 precludes separate punishment for the burglary and the assault to commit rape of which defendant was convicted in count 1. We therefore order the sentence on count 2 stayed.

C. Sentences for Infliction of Corporal Injury on a Spouse and Assault with Force Likely to Produce Great Bodily Injury

Defendant was convicted in count 3 of infliction of corporal injury on a former spouse (§ 273.5, subd. (a)) and in count 5 of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)). In argument to the jury, the prosecutor asserted the assault count had been based on defendant’s strangling the victim, whereas the corporal injury count was based on “the injuries she received to her lip when she was struggling with him, when he [was] on top of her, when he [was] forcing himself on top of her.” The prosecutor repeated a similar argument at the sentencing hearing.

The trial court found that defendant entertained several criminal objectives, and consecutive punishments therefore were appropriate: “In particular, the defendant was strangling, that is choking [the victim], she was able to get away from -- from him, she ran, and then the defendant chased her down and caught her up, and caused the bruising, and I believe that the defendant had time to reflect on his behavior. He had time to consider his behavior. Yet he continued his felonious assault on the victim, so therefore, I do not see Count 3 as 654 to Count 5, because they were independent of and not merely incidental to each other.”

Although, as we discuss below, we conclude the record supports a finding that defendant had separate intents with respect to counts 3 and 5, the record does not support a finding that defendant’s intent or conduct in choking or strangling the victim in count 5 was separate from his intent or conduct in committing the assault with intent to commit rape in count 1. Rather, the evidence showed an unbroken and continuous course of conduct directed toward raping the struggling and resistant victim, and the strangling was an attempt to subdue the victim during the attempt to rape her. Thus, we conclude the trial court erred in failing to stay the sentence for count 5.

That a defendant had the opportunity to reflect on his acts between offenses, yet continued with more offenses, however, is sufficient evidence to support a finding that his intent in committing the later offenses was separate from his intent in committing the earlier offenses. (See People v. Trotter (1992) 7 Cal.App.4th 363, 365-366 [affirming consecutive sentences for two assaults on the same victim that occurred about one minute apart during a police chase].) Here, the trial court could reasonably conclude that defendant formed a new intent when he resumed his assault on the victim after the break during which he had an opportunity to reflect on his behavior. Thus, we conclude the trial court did not err in imposing a consecutive sentence for count 3.

D. False Imprisonment

Defendant contends that section 654 requires stay of his sentence for false imprisonment by violence or menace (count 4). He argues that he acted in this count with the same intent that he entertained in counts 2, 3, and 5, and that all of the acts constituting those crimes were incidental to his assault with intent to commit rape. We disagree.

The record supports a finding that defendant developed a separate intent to commit false imprisonment. After defendant cut his hand on the knife and the couple ceased struggling in the kitchen, defendant told the victim that he loved her, wanted to “be a family again,” and that they were going to reconcile. The victim testified he locked the door, preventing her escape, at some point during this discussion.

Thus, the evidence shows that defendant had calmed down after his earlier assaultive behavior, and he formed a new objective of forcing the victim to agree to reconcile their relationship. Given the dramatic change in his emotional state, coupled with his use of words instead of violence, we conclude that the record supports a finding that he formed a new intent in imprisoning the victim different from his intent in committing the prior crimes. Therefore, section 654 does not require a stay of defendant’s consecutive sentence for false imprisonment.

DISPOSITION

The judgment is affirmed in part and reversed in part. Defendant’s consecutive sentences for burglary (count 2) and assault with force likely to produce great bodily injury (count 5) are ordered stayed. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL RECORDS.

HOLLENHORST

Acting P. J.

We concur:

RICHLI

J.

KING

J.

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^[1] All further statutory references are to the Penal Code.