P. v. Flores

Filed 5/10/07 P. v. Flores 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Tehama)

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After attacking his cousins wife, defendant Jacinto Jose Flores entered negotiated pleas of guilty to rape (Pen. Code, 261, subd. (a)(2); unspecified section references that follow are to the Penal Code), burglary of a locked vehicle ( 459), making criminal threats ( 422), assault with intent to commit rape, sodomy, and oral copulation ( 220), and failing to register as a sex offender ( 290, subd. (a)(1)(A)). The court dismissed four other charges, including kidnapping to commit rape ( 209, subd. (b)(1)), and the parties agreed that a maximum sentence of 11 years might be imposed.

The court sentenced defendant to an aggregate prison term of 10 years. It selected the upper term of 8 years for rape, and added a consecutive term of 16 months for assault and a consecutive 8-month sentence for making criminal threats. (The sentences on the remaining counts are not at issue in this appeal.)

Defendant contends that the court abused its discretion in imposing consecutive sentences on the assault and criminal threat convictions. Specifically, he contends that these sentences should have been stayed pursuant to section 654 or, alternatively, that concurrent sentences should have been imposed. Defendants claim is properly before us despite the lack of a certificate of probable cause. (People v. Shelton(2006) 37 Cal.4th 759, 769-770; People v. Buttram (2003) 30 Cal.4th 773, 787 [challenge to exercise of courts sentencing discretion within agreed maximum sentence does not require certificate of probable cause].) However, we find it unpersuasive and therefore affirm the judgment.

Facts and Proceedings

The parties stipulated that the sheriffs report in this case formed the factual basis for defendants plea. That report is not part of the record on appeal but is outlined in the probation report and provides as follows:

The victim is married to defendants cousin. On one occasion, after visiting defendants family, the defendant and the victim went together to a casino. On their return, as the victim drove, defendant reached over, switched off the ignition, and stopped the car. Defendant asked the victim for the keys, and when she refused, defendant held her hair and hit her in the face several times.

Defendant then pushed the victim out of the car, got behind the wheel and pulled the victim back into the passengers seat. He held her head down so that she could not see where they were going. Defendant told the victim to undress. When she refused, defendant said he had a gun and threatened to shoot her. He also said he had friends who would kill her children if she did not cooperate. The victim said she would comply if her children were left alone. She took off her pants, and defendant threw them out of the window.

The victim pulled out her cell phone, and defendant demanded that she give it to him. She refused and instead called defendants house and reported that he had kidnapped her. Defendant grabbed the phone and threw it out of the window. As he did so, the car ran off the road and into a ditch.

A car approached and defendant ran off and hid in a field. The victim locked herself in the car. When the passing car did not stop, defendant returned to the car and demanded that the victim unlock the door. She refused. Defendant broke a window with a rock, opened the door, pulled the victim out by her hair, and punched her in the face. He forced her across the road, ordered her to the ground, and told her to remove her underwear. Defendant then raped her.

Discussion

Defendants sole contention on appeal is that the threats and assault were part of one indivisible course of conduct leading up to the rape, and that the trial court therefore abused its discretion in ordering consecutive sentences for these offenses. Defendant contends that the court instead should have stayed the sentences for assault and criminal threats pursuant to section 654 or, alternatively, imposed concurrent sentences for these offenses. As we discuss, neither claim has merit.

I

Section 654

Section 654 prohibits punishment for two crimes arising from a single indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The proscription against double punishment in section 654 is applicable when there is a course of conduct which . . . comprises an indivisible transaction punishable under more than one statute. . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any of them but not for more than one. [Citation.] (People v. Coleman (1989) 48 Cal.3d 112, 162.) If, however, a defendant acts with multiple criminal objectives that are independent of each other, the defendant may be punished for each offense, even though the violations are parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.)

As the California Supreme Court has noted, courts have limited the application of section 654 in various ways. (People v. Latimer, supra, 5 Cal.4th at p. 1211.) Some have narrowly interpreted the length of time the defendant had a specific objective, and thereby found similar but consecutive objectives permitting multiple punishment. [Citations.] []  Other cases have found separate, although sometimes simultaneous, objectives under the facts. [Citations.] (Id. at pp. 1211-1212.)

The defendants intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) We review the courts determination of [a defendants] separate intents for sufficient evidence in a light most favorable to the judgment, and presume in support of the courts conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence. [Citation.] (People v. Cleveland (2001) 87 Cal.App.4th 263, 271.)

In ordering a consecutive sentence for assault, the trial court explicitly rejected defendants claims under section 654. The court stated: [T]here was a separate assault inside the car when the Defendant grabbed the victims hair, struck her, held her head down, that that was done with the intent to commit rape. It is sufficiently separate from the actual rape because it is sufficiently separated from time and place. After that the car goes into a ditch. The victim locks herself into the car. The Defendant commits the burglary, which is the subject of a separate count, in order to complete the actual rape, and therefore the Court finds that they . . . [are not] subject to [section] 654 . . . .

Substantial evidence supports that determination. The assault took place in the car as defendant tried to get the keys to the victims car. As the court concluded, it was sufficiently separated in time and place from the actual rape that section 654 is not implicated.

The court did not make a similarly explicit finding on the defendants conviction for making criminal threats, but instead implicitly rejected defendants claim that section 654 precluded multiple punishment by noting that the threats presented a sufficient separate offense and separate intent under the circumstances of this case, aside from the actual rape . . . . The chronology we outlined supports this conclusion. The threats occurred inside the car, before the victim made a call for help on her cell phone, before the car crashed into a ditch, before defendant ran from the car, before the victim locked herself inside the car, and before defendant broke into the car, pulled the victim out, forced her across the road, and raped her. Given this timeline, the court could reasonably conclude that the crimes were not part of one indivisible transaction.

Substantial evidence supports the trial courts findings. There was no violation of section 654.

II

Concurrent Sentences

Although defendant focuses his attention on section 654, he also suggests that the court abused its discretion in imposing consecutive rather than concurrent sentences for assault and criminal threats. This claim is no more persuasive than the first.

Rule 4.425 of the California Rules of Court outlines the criteria affecting the decision to impose consecutive or concurrent sentences. These include (a) Facts relating to the crimes, including whether or not: [] (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. (Cal. Rules of Court, rule 4.425.)

The trial court is vested with the discretion to make these findings, and its conclusions will be reversed only if they exceed the bounds of reason or are unsupported by the evidence. (People v. Giminez (1975) 14 Cal.3d 68, 72; People v. Oseguera (1993) 20 Cal.App.4th 290, 294.) No abuse of discretion occurred here.

Again, the chronology of events demonstrates that the threats and assault occurred at a different time and different place than the rape. The assault occurred as defendant tried to get the keys to the victims car. The threats also occurred in the car, well before the rape took place. The court found that these offenses involved separate acts of violence or threats of violence and evidenced different intents. Substantial evidence supports that determination.

The court did not abuse its discretion in sentencing defendant to consecutive prison terms for assault and making criminal threats.

Disposition

The judgment is affirmed.

HULL, J.

We concur:

RAYE , Acting P.J.

ROBIE , J.

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