P. v. Gomez

Filed 8/30/07 P. v. Gomez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed as modified.

George P. Hobson, Jr., for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, Heather F. Crawford and James Flaherty, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Carlos Gomez appeals his conviction on multiple counts involving spousal abuse and domestic violence. Finding no error, we affirm the judgment. We will, however, direct the superior court to correct the sentencing minutes and abstract of judgment to reflect defendants conviction and sentence accurately.

PROCEDURAL HISTORY

A third amended information charged defendant with two counts of spousal abuse with great bodily injury (counts 1 & 5; Pen. Code,  273.5, subd. (a), 12022.7, subd. (e)); assault with a deadly weapon (count 2; Pen. Code,  245, subd. (a)(1)); two counts of making a criminal threat (counts 3 & 9; Pen. Code,  422); four counts of spousal abuse (counts 4, 6, 11 & 12; Pen. Code,  273.5, subd. (a)); rape of spouse (count 7; Pen. Code,  262); false imprisonment (count 8; Pen. Code,  236); child abuse (count 13; Pen. Code,  273a, subd. (b));^[1]and misdemeanor possession of anabolic steroids (count 10; Health & Saf. Code,  11377, subd. (a)).

On motion of the prosecutor, the court dismissed the great bodily injury enhancement as to count 5. The jury acquitted defendant on counts 4 and 11 (spousal abuse) and count 13 (child abuse), deadlocked on count 1 (spousal abuse with great bodily injury), and convicted defendant of all remaining charges.^[2]

The trial court sentenced defendant to 15 years in state prison on the felony counts, plus a term of 180 days on count 10, with credit for time served. Defendant filed a timely notice of appeal.

FACTS

The issues raised on appeal do not require a detailed statement of the facts. Briefly stated, defendant cohabited with C.G., both before and after they were married. Over a period of years, defendant committed numerous acts of physical abuse against C.G. which resulted in injuries ranging from bruises to broken bones. His repeated apologies induced C.G. to remain with him, despite the injuries she suffered. In May 2002, after C.G. reported acts of violence including spousal rape, false imprisonment and criminal threats, police arrested defendant and obtained a temporary restraining order for C.G. Criminal charges were filed. The charges included possession of a usable quantity of anabolic steroids, which was found in the couples home. Defendant used steroids regularly. Both he and C.G. used methamphetamine.

The couple reconciled a few months after the May 2002 incident, and C.G. recanted her accusations. She was pregnant at the time, and defendant apparently told her that his family would evict her if defendant went to prison. She also applied to withdraw the restraining order. The prosecution did not withdraw the charges against defendant, despite C.G.s unwillingness to cooperate. Further violence occurred, and C.G. eventually sought a divorce and, apparently, decided to cooperate.

Defendants former wife, J.C., testified to the abuse defendant inflicted on her during the course of a 14-year relationship. The incidents involved battery and forced sexual intercourse, as well as one incident during which defendant used a steak knife to slash a tire on J.C.s car to prevent her from leaving.

LEGAL ANALYSIS

DEFENDANTS CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FAILS

Background

Defendant contended in a motion for new trial and contends on appeal that his trial attorney provided ineffective assistance. Both the record and defendants briefing are somewhat confusing. The background is as follows.^[3]

Defendant filed a motion for new trial in which he asserted that his trial attorney provided deficient representation because he gave poor advice concerning a plea bargain. He also filed a motion for new trial based on the insufficiency of the evidence and one based on prosecutorial misconduct. At the hearing on the new trial motions, the court ruled that a claim of ineffective assistance of counsel (IAC) based on improper advice with respect to a plea bargain is not cognizable in a new trial motion but had to be addressed by means of a petition for writ of habeas corpus filed after sentencing. Accordingly, the court did not rule on the merits of the motion as written. However, the court did allow defendant to address a contention, not mentioned in the written motion, that his trial attorneys representation was ineffective because he failed to seek a continuance or advise defendant to pursue a plea bargain when he received belated discovery stating that defendants former wife would testify that he raped her during their marriage. He also contended that trial counsel did not adequately prepare for trial following receipt of that discovery. The court heard the testimony of trial counsel and of defendant, and denied that motion.

After defendant was sentenced, the court held a hearing on the IAC claim. At that hearing, the court heard further testimony and argument concerning the claim of ineffectiveness of counsel with respect to the plea bargain. Defendant contended that his trial attorney was ineffective because he advised him to reject a plea bargain without having fully apprised him of the adverse testimony his ex-wife would provide. The court found trial counsels testimony credible and defendants testimony not credible. Accordingly, it denied the motion.

On appeal, defendant makes two separate arguments. In his opening brief, he argues that trial counsel was ineffective because he failed to advise defendant to accept a plea bargain. His argument appears to be based on the premise that there was a plea bargain on the table at the time trial counsel gave his allegedly poor advice, which he would have accepted if he had known the true state of the case, i.e., the potentially damaging testimony his ex-wife would give. As we discuss below, the record does not support this contention. After reviewing the Attorney Generals brief, however, appellate counsel evidently realized that the record omitted the transcript of the postsentencing hearing. We granted a motion to augment the record. In his reply brief, defendant changes his argument and contends instead that counsel advised him to reject a plea bargain without having provided him with information concerning the nature and extent of the testimony his ex-wife proposed to give. We will address both arguments. However, we will limit our discussion to the issues and arguments defendant actually presented in the trial court. To the extent that his briefing raises arguments not raised in the trial court, we disregard them.^[4]

Standard of Review

An attorney provides deficient representation, in violation of the defendants state and federal constitutional right to the effective assistance of trial counsel, if the attorneys performance fell below an objective standard of professional competence. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) To obtain reversal, the defendant must show both that counsels performance was deficient and that the deficiency was prejudicial. In this context, prejudice means that there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant. (Strickland v. Washington, supra, at p. 687.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Id. at p. 694.)

A claim of IAC may be raised in the trial court by means of a motion for new trial. The trial court may, and should, address the claim if it is able to determine the issue based on its observations at trial. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) In reviewing claims of IAC that were previously raised in a motion for new trial, we grant deference to the trial courts factual findings, but review de novo the ultimate question of whether the facts established in the trial court demonstrate a violation of the constitutional right to effective assistance of counsel.^[5] (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)

Argument in Opening Brief

In his opening brief, defendant appears to contend that if he had been given correct advice after his attorney received the allegedly belated discovery, he would have accepted an offer of one year in county jail. In In re Alvernaz (1992) 2 Cal.4th 924, on which defendant relies, the California Supreme Court held that a criminal defendant can obtain relief if his trial attorneys ineffective representation results in the defendants rejection of an offered plea bargain. (Id. at pp. 934-935.) Here, however, the record does not show that there was an offered plea bargain on the table.

At the first hearing on defendants new trial motion, trial counsel testified that when he received the belated discovery, he discussed with defendant three options: continuing the trial, proceeding to trial, and the possibility of a plea bargain. He said that at an unspecified time prior to trial, there had been an offer of one year in county jail with no credits. He had discussed that offer with defendant, and defendant chose not to accept it. On the first day of trial, when he received the belated discovery, he again raised the issue of a plea bargain with defendant. He testified that he discussed with defendant whether, in light of the new information, they should broach the topic of a plea bargain again with the prosecution. After discussion with defendant, there was a decision made not to proffer a plea. Defendant denied that counsel had discussed the possibility of a plea bargain with him at that time. He testified that the only option counsel suggested was asking for a mistrial. At the second hearing, defendant testified that he had rejected an offer of one year in county jail about a month and a half before the trial. Thus, there is no evidence that there was an offered plea on the table on the first day of trial which defendant rejected based on the advice of his attorney. (In re Alvernaz, supra, 2 Cal.4th at p. 934.)

Defendant has not cited any authority which holds that an attorney can be deemed ineffective if, based on his advice, the defendant chooses not to seek a plea bargain. Even assuming, however, that an attorney could provide inadequate assistance by failing to seek a plea bargain, defendant has not met his burden of demonstrating prejudice. At a minimum, he would have to show that if his attorney had approached the district attorney about a plea bargain, the district attorney would have made an offer which defendant would have accepted. There is no such showing here. In the absence of an affirmative showing of prejudice, defendants claim fails. (Strickland v. Washington, supra, 466 U.S. at p. 687.)

Argument in Reply Brief

As noted above, the trial court denied the postsentencing IAC motion because it found trial counsels testimony credible and did not find defendants testimony credible. In reviewing the denial of a motion for new trial, we accept the trial courts findings of historical fact and its credibility determinations if supported by substantial evidence. (People v. Nesler (1997) 16 Cal.4th 561, 582; People v. Taylor, supra, 162 Cal.App.3d at pp. 724-725.)

The trial courts determination of the facts and of credibility is supported by substantial evidence. The trial judge stated that he knew and frequently dealt with four of the five attorneys who had represented defendant in this case, each of whom, according to defendant, had failed to give him an accurate assessment of the strength of the prosecutions case. Based on his knowledge of those attorneys, the judge did not believe defendants testimony. He found defendants memory suspect. The judge also found that the final trial attorney, Daniel Lough, was aware of the potential testimony of defendants ex-wife and that he did discuss it with defendant when they discussed the plea bargain offer. In his testimony during the postsentencing hearing on the motion, Lough testified that he imagine[d] that he had discussed with defendant, at least in general terms, the testimony that defendants ex-wife proposed to give. The court found this sufficient evidence, saying that if Lough had claimed to remember every detail of his conversation with defendant, he would find that less credible than Loughs general recollection. Giving due deference to the trial courts findings, we affirm its ruling denying the IAC claim.

NO PROSECUTORIAL MISCONDUCT OCCURRED

Defendant filed a motion for new trial based on three alleged incidents of prosecutorial misconduct, one having to do with belated discovery and two which occurred during closing argument. On appeal, he contends that the trial court improperly denied the motion.

We review a trial courts ruling on a motion for new trial for abuse of discretion. However, in the case of a denial of a motion for new trial, we are required to review the entire record to determine whether the error, if any, was prejudicial under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.)

Discovery Violation

The first ground for new trial, as asserted on appeal, is the untimely delivery of discovery material to defense counsel by the prosecutor. In ruling on the new trial motion, the trial court, however, treated that issue as one of IAC, not of prosecutorial misconduct. Defendant therefore did not obtain a ruling on his claim of prosecutorial misconduct. Failure to object to an erroneous ruling waives appellate review. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.)

In any event, there is no basis in the record upon which the trial court could have determined that any failure to provide timely discovery constituted prosecutorial misconduct. To constitute a violation of the federal Constitution, prosecutorial misconduct must so infect[] the trial with unfairness as to make the resulting conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive orreprehensible methods to attempt to persuade either the court or the jury. [Citations.] (People v. Benavides (2005) 35 Cal.4th 69, 108.) Even if misconduct occurs, moreover, it is reversible error only if it is prejudicial under the applicable standard. (See People v. Fields (1983) 35 Cal.3d 329, 363.)

Here, the issue of untimely discovery was raised on the first day of trial. The prosecutor explained that she had provided all discovery in a timely manner to the public defender who had previously represented defendant. Defense counsel stated that the public defender had turned over a substantial portion of the discovery, but had not given him the single report which was at issue. The court accepted the prosecutors explanation, noting that in such a transition, things can get[] lost in the shuffle. It found no evidence that the prosecutor had willfully failed to provide timely discovery. The record fully supports that finding. The record further supports the trial courts ruling, in connection with the new trial motion, that any delay in providing discovery did not prejudice the defense: Defendant did not make any offer of proof as to how the delayed discovery adversely affected trial preparation or presentation, and trial counsel testified that it had no effect on his preparation or presentation.

Closing Argument

Defendant contended in his new trial motion that the prosecutor committed misconduct during closing argument when she mischaracterized evidence that defendant slashed J.C.s tires with a knife as an assault on J.C., and when she characterized defendants act of having sexual intercourse with J.C. against her will as rape. He reasserts both contentions on appeal.

A claim of prosecutorial misconduct during closing arguments is waived unless the defendant made a contemporaneous objection and asked the trial court to admonish the jury to disregard the prosecutors statement. (People v. Sapp (2003) 31 Cal.4th 240, 279.) A timely objection is excused only if an admonition would not have cured the harm, or if the request would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820-821.) Here, defense counsel made no objection to either statement. In neither his new trial motion nor on appeal does defendant explain why an admonition would not have cured any harm, assuming that either statement was improper, and we are able to conceive of no reason that such an admonition would not have been effective. Review is therefore waived as to both statements.

In any event, even if we were to treat the issue as preserved, we would not find that the prosecutors comments constituted misconduct. As noted above, a prosecutors conduct violates a defendants federal constitutional rights only if it is so egregious and infects the trial with such unfairness that the resulting conviction is a denial of due process. (People v. Hill, supra, 17 Cal.4th at p. 819.) Conduct that does not rise to that level is misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade . . . the jury. (Ibid.) The prosecutors use of the word rape to describe defendants conduct with his former wife, even if it was technically improper, does not rise to that level. Defendants argument is that in 1985, when the incident took place, there was no such crime as spousal rape. Therefore, he contends that the incident was not admissible as a prior sexual offense within the meaning of Evidence Code section 1108. He also argues that because the incident preceded the charged offenses by more than 10 years, it was not admissible as a prior act of domestic violence within the meaning of Evidence Code section 1109. Thus, one prong of his argument is that the court erred in admitting this evidence.^[6] As far as the claim of prosecutorial misconduct goes, however, the record reflects that the court ruled this evidence admissible under Evidence Code sections 1108 and 1109.^[7] It was therefore proper for the prosecutor to rely on this ruling and to argue that defendant had a propensity to commit such acts. To the extent that the prosecutor mischaracterized the evidence, saying that J.C. begged defendant not to have sex with her, as defendant contends, a timely admonition to the jury to rely on its own recollection of the testimony would have sufficed to dispel any harm. In any event, the mischaracterization was too trivial to be called egregious or reprehensible. (People v. Hill, supra, 17 Cal.4th at p. 819.)

Similarly, assuming that the prosecutors characterization of defendants conduct in the tire-slashing incident as assault was not entirely accurate legally, the misstatement was harmless beyond a reasonable doubt because there is no possibility that the jury was misled. (People v. Berryman (1993) 6 Cal.4th 1048, 1073-1076; People v. Lucas (1995) 12 Cal.4th 415, 475.) The jury was instructed on the elements of assault with a deadly weapon in connection with count 2 of the third amended information, and it was therefore in a position to determine whether the uncharged tire-slashing incident constituted that offense.

THERE WAS NO VIOLATION OF DEFENDANTS RIGHT TO A TIMELY PRELIMINARY HEARING

Defendant next asserts that the trial court improperly denied his motion for dismissal based on his assertion that a continuance of his preliminary hearing over his objection violated his constitutional and statutory right to a speedy trial. As the trial court noted, the motion asserted only that the court violated defendants right to a timely preliminary hearing as provided for by section 859b. However, section 859b, which establishes time limits for conducting preliminary hearings, is one of several statutes which are supplementary to and a construction of the constitutional right to a speedy trial. (People v. Luu (1989) 209 Cal.App.3d 1399, 1404, citing People v. Wilson (1963) 60 Cal.2d 139, 145.) Defendants complaint that the court violated his speedy trial rights therefore fairly encompasses a claim that his right to a timely preliminary hearing pursuant to section 859b was violated.

The background is as follows. On July 23, 2003, defendant stipulated to continue his preliminary hearing, which had previously been continued multiple times, to August 21, 2003. He waived time for his preliminary hearing to that date plus 15 court days. He was not in custody. The court found, and the record shows, that defendant had previously waived the 10-day and 60-day rules. On August 21, 2003, defendant stipulated to set the preliminary hearing on September 5, 2003. No additional time waivers were given.

On September 5, 2003, the court continued the preliminary hearing to September 11, 2003. The record does not indicate that the defense objected. On September 11, 2003, the court trailed the hearing to September 12, 2003, which it noted was the last court day. On September 12, 2003, the prosecutor sought a continuance, stating that she was engaged in a homicide trial and had been unable to secure the attendance of police officer witnesses for the preliminary hearing. September 12 was a Friday, and she was not in trial on that day. But for the problem in securing the attendance of some of her witnesses, she would have been able to proceed with the preliminary hearing on that date. Defendant objected to the continuance, arguing that the prosecutor had failed to show good cause, in that the witnesses had been ordered back for that date and the prosecutors office was capable of ensuring their return even if the particular prosecutor was unable to do so because she was in trial. The trial court found good cause, and continued the preliminary hearing to September 26. The hearing was held on September 26, 2003.

Defendant did not assert a violation of his right to a timely preliminary hearing until after the verdict had been rendered. At the hearing on defendants posttrial motions, the trial court ruled that the motion was untimely. Defense counsel conceded that the motion should have been made at the conclusion of the preliminary hearing. The court did not address the merits of the motion.

Defendant now asserts that it was error to deny the motion. However, he does not address the trial courts actual ruling on his motion to dismiss -- that it was untimely -- but rather reiterates the same argument he addressed to the trial court, i.e., that a continuance without good cause beyond the last date to which he waived time for his preliminary hearing violated his right under section 859b. We address only that argument.

The Attorney General asserts, without citation to authority, that the motion for dismissal was not timely because it should have been made at the conclusion of the preliminary hearing. He contends that defendants failure to file the motion in a timely manner precludes appellate review. We have found no authority which addresses the issue. We note that section 871.6 provides that a defendant may assert a violation of his or her rights under section 859b by filing a petition for a writ of mandate or prohibition in the superior court seeking immediate relief. The statute provides for appellate review of the decision to grant or deny the petition. The statutes language is permissive, rather than mandatory, however, and the statute does not state that the remedy it provides is exclusive.^[8] We have found no cases which address that issue.

We need not decide whether defendant forfeited his right to raise on appeal the denial of his motion to dismiss based on the alleged violation of section 859b, however, because there was no violation. Only a defendant who is in custody has the right to dismissal of the complaint for violation of the right to a preliminary hearing within 10 days. ( 859b; People v. Alvarez (1989) 208 Cal.App.3d 567, 571, 574.) If the defendant is not in custody, the provision of section 859b that the complaint must be dismissed if the preliminary examination is continued beyond 10 days does not apply. (People v. Alvarez, supra, at p. 574.) Defendant was not in custody at any time relevant to this issue. We also note that defendant repeatedly waived the 10-day rule and the 60-day rule. Once a defendant has waived his right to a preliminary hearing within 10 court days after his arraignment, or within 60 calendar days after his arraignment, further waivers are not required in order for the prosecution to obtain a continuance of the hearing: After a defendant, who is not in custody, initially has waived his or her right to a preliminary hearing within 10 court days of his or her arraignment or plea, the only remaining requirement of section 859b to preclude dismissal is that the preliminary hearing be set within 60 days from the date of the arraignment or plea. If the preliminary hearing is not set within the 60-day period, the magistrate is required pursuant to section 859b to dismiss the complaint, unless the defendant personally waives his or her right to a preliminary hearing within the 60 days. (People v. Alvarez, supra, at p. 572, quoting section 859b; see also Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 727-730.)^[9] Here, the record shows that defendant waived any right to a preliminary hearing within 10 court days after his arraignment, and any right to a preliminary hearing within 60 calendar days. No showing of good cause was required pursuant to section 859b to continue the hearing. Of course, a preliminary hearing cannot be continued indefinitely over the defendants objection; at some point, the delay will violate the defendants constitutional right to a speedy trial, even if there is no violation of the defendants statutory speedy trial rights because he had previously waived the statutory time limits provided for in section 859b. (See generally People v. Martinez (2000) 22 Cal.4th 750, 755, 766-767.) Here, however, defendant had previously agreed to or requested continuances for approximately 18 months. The additional continuance from September 11 to September 26 did not violate his constitutional right to a speedy trial.

THE COURT DID NOT ABUSE ITS DISCRETION IN DENYING DEFENDANTS MOTION FOR NEW TRIAL BASED ON INSUFFICIENCY OF THE EVIDENCE

Defendant filed a motion for new trial contending that the evidence was insufficient to support several counts. He reiterates his claims verbatim on appeal.^[10]

A trial court may order a new trial if it finds, on motion by the defendant, that the verdict is contrary to the evidence. ( 1181, subd. 6.) In ruling on a motion brought on this ground, the trial court must weigh the evidence independently, considering the proper weight to be accorded to the evidence, and then deciding whether there is sufficient credible evidence to support the verdict. (People v. Lewis (2001) 26 Cal.4th 334, 364.) We review the trial courts ruling on such a motion for abuse of discretion: A trial courts ruling on a motion for new trial is so completely within that courts discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion. [Citation.] [Citation.] (Ibid.)

With two exceptions, defendants argument to the trial court was simply that the testimony of C.G. was not sufficiently credible to support the verdict on the specified counts. In ruling on the motion, the court stated that although C.G. had admitted lying in the past, the prosecution did its job in trying to rehabilitate her. The court then held that there was substantial evidence to support the verdict, and that if the court had been sitting as the 13th juror, it would have agreed with what the jury did. Accordingly, it denied the motion. This is sufficient to demonstrate that the trial court independently weighed the evidence and assessed the credibility of C.G. The fact that another trier of fact could have found C.G.s testimony not credible is not a basis for finding that the trial court abused its discretion in determining that her testimony constituted substantial evidence. The court therefore did not abuse its discretion in denying the new trial motion to the extent that it was based on defendants challenge to the credibility of C.G.s testimony.

As to counts 3 and 11, however, defendant asserted that the evidence was insufficient not because it was not sufficiently credible but because there was no evidence to support certain elements of the offenses. This is not the subject of a motion for new trial; rather, the legal sufficiency of the evidence must be addressed by a motion for acquittal pursuant to section 1181.1. (People v. Veitch (1982) 128 Cal.App.3d 460, 466-467.) We will nevertheless address defendants argument with respect to count 3.^[11] The legal sufficiency of undisputed evidence to support a conviction is a question of law which can be raised for the first time on appeal. (People v. Castille (2005) 129 Cal.App.4th 863, 885.) We review the issue de novo. (People v. Villalobos (2006) 145 Cal.App.4th 310, 316, fn. 3.)

Defendant was charged in count 3 with making criminal threats in violation of section 422. He contends that the evidence was insufficient to support the conviction on that count because the threat, if there was one, was purely prospective and therefore did not convey an immediate threat.

Section 422 provides, in pertinent part, Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

Although on its face, section 422 appears to require an unequivocal threat with an immediate prospect of execution of the threat, the California Supreme Court has held that it does not require an unconditional threat of immediate harm. Rather, the use of the word so in the statute indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 340.) Thus, there are different degrees of unconditionality. A threat which may appear conditional on its face can be unconditional under the circumstances. . . . [] Language creating an apparent condition cannot save the threatener from conviction when the condition is illusory, given the reality of the circumstances surrounding the threat. A seemingly conditional threat contingent on an act highly likely to occur may convey to the victim a gravity of purpose and immediate prospect of execution. [Citation.] (Ibid.)

Whether an apparently conditional threat qualifies as a violation of section 422 depends upon the surrounding circumstances. (People v. Solis (2001) 90 Cal.App.4th 1002, 1013; People v. McCray (1997) 58 Cal.App.4th 159, 172.) The parties history is a relevant factor. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1218.) In People v. Butler (2000) 85 Cal.App.4th 745, for example, a statement that the victim was going to get hurt unless she minded her own business qualified as a criminal threat because the victim was aware that the defendant had been terrorizing other residents of the apartment complex where she lived, and he emphasized his seriousness by grabbing her arm while issuing the threat. He also impressed the seriousness of his threat upon her by bragging that his gang owned the apartments. The victim felt very intimidated as well because the defendant was accompanied by other young men, and she was alone. (Id. at pp. 754-755.)

Here, the evidence showed that defendant told C.G. that he would slit her throat and the throats of her children and family if she ever again told anyone about his drug use. As he issued that threat, he held one hand over C.G.s mouth and nose and pressed a knife to her throat. Defendant had the ability to slit C.G.s throat at that moment. That, plus his history of violence against her, was sufficient to convey immediacy and a gravity of purpose within the meaning of section 422. (People v. Butler, supra, 85 Cal.App.4th at pp. 754-755.) The evidence was therefore legally sufficient to support the conviction on count 3.

THE EXCLUSION OF EVIDENCE OF THE VICTIMS PROPENSITY FOR ROUGH SEX DID NOT VIOLATE DEFENDANTS DUE PROCESS RIGHT TO PRESENT A DEFENSE

Next, defendant contends that he was deprived of his due process right to present a defense because the trial court excluded evidence that C.G. had a propensity for rough sex. He contends that this evidence would have impeached her testimony that she was not into rough sex, and would have provided an explanation for some of her injuries. He also contends that the testimony of the same witness who would have testified about C.G.s sexual propensity would have impeached her denial that she used cocaine and marijuana, in addition to methamphetamine.

An appellants contentions must be supported by both meaningful argument and citation to pertinent authority. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.) A summary argument which cites only general legal principles without relating them to the specific facts is not sufficient. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) Here, although defendant cites pertinent authorities, he does not develop his argument in any meaningful way and does not explain how the legal principles apply to his case. Further, he makes no attempt to demonstrate how the alleged violation of his constitutional right was prejudicial. An appellant has the burden of demonstrating both error and prejudice. In the absence of a meaningful argument demonstrating prejudice, we may treat an issue as waived. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106.) Moreover, as the Attorney General points out, the defense did not challenge the exclusion of the evidence on constitutional grounds at trial. Defendant has therefore forfeited appellate review of any contention based upon those grounds. (People v. McPeters (1992) 2 Cal.4th 1148, 1188; People v. Benson (1990) 52 Cal.3d 754, 788 [failure to assert due process violation in trial court waives appellate review].)

In his opening brief, defendant refers to the excluded evidence as being relevant and points out that relevant evidence is admissible. He does not elaborate or develop the argument in any way. In his reply brief, he explains the relevance of the excluded evidence and argues that the court should have admitted it. He does not, however, acknowledge that the trial court did not exclude the evidence on relevance grounds. Rather, the trial court excluded the evidence under Evidence Code section 352, finding that the evidence was a tangent and unduly time consuming. Relevant evidence is admissible [e]xcept as otherwise provided by statute. (Evid. Code,  351.) Evidence Code section 352 provides that evidence may be excluded, even if it is relevant, if the court determines that its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Defendant does not address the courts exclusion of the evidence under Evidence Code section 352, and the contention is therefore waived.

SECTION 654 DOES NOT PRECLUDE IMPOSITION OF UNSTAYED SENTENCES ON COUNTS 8 AND 9

Finally, defendant contends that because the crimes charged in counts 7, 8, and 9 constituted an indivisible course of conduct, sentence must be stayed on counts 8 and 9.

Section 654 provides that an act or omission that is punishable under 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).) The prohibition on multiple punishment applies when multiple offenses are committed as part of a course of conduct that violates more than one statute and constitutes an indivisible transaction. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The divisibility of a course of conduct depends upon the intent and objective of the defendant. If all of the offenses are incident to a single objective, the defendant may be punished for only one offense. (Ibid.) Even if the crimes are committed in close proximity temporally, the defendant may be punished separately for each, as long as the offenses were independent and none was merely incidental to another. (People v. Hicks (1993) 6 Cal.4th 784, 789.)

Whether the defendant acted in pursuit of a single criminal objective or multiple objectives is determined from all the circumstances and is primarily a question of fact for the trial court. The courts findings will be upheld on appeal if there is any substantial evidence to support them. (People v. Porter (1987) 194 Cal.App.3d 34, 38.) If the trial court does not make explicit findings, the necessary findings are implied from the fact that the court imposed unstayed sentences on the counts in question. (People v. Nelson (1989) 211 Cal.App.3d 634, 638; People v. Coleman (1989) 48 Cal.3d 112, 162.)

Defendant contends that count 8 (false imprisonment) and count 9 (criminal threat) were incidental to his rape of C.G. (count 7). His premise is that the objective of the false imprisonment and the threat were to achieve his ultimate goal of forcing C.G. to have sexual intercourse with him. There is, however, substantial evidence to support the trial courts implied finding that the three crimes were separate and had separate objectives. C.G. testified that she and defendant had been having an argument over the course of several days. On May 13, defendant said he wanted to make up. C.G. agreed to talk to him, but declined to have sex with him. After they had talked awhile, during which time defendant kept nudging her, wanting to have sex with her, C.G. told defendant that the marriage was over. Defendant pushed her back on the bed, got on top of her, and put his hand over her nose and mouth so that she had difficulty breathing. Defendant told her that he wasnt going to live without her and that she would die first. Then he let her go and got up. C.G. said she was going to get her stuff and that she was leaving. Defendant started apologizing, saying that he loved her. He wanted to make up with her. He tried to hug her, but she resisted. She told him she wasnt going to have sex with him but would talk to him. Instead, he forced himself on her and had intercourse with her. Afterward, C.G. went into the bathroom and defendant left the bedroom. As C.G. was getting dressed, defendant came into the bathroom. She said something that made him angry, and he punched her shoulder. She tried to leave, but he blocked the doorway. She demanded that he let her out, but he refused, saying she would upset her daughter. She tried to get out, but she couldnt get past him. He head-butted her twice and knocked her to the floor. He began hitting her with his sandal. He had ripped her clothes off while they were in bathroom. Eventually, he stopped hitting her and left. She got dressed and left the room.

Based on this evidence, it is reasonable to conclude that the three offenses were separate. Defendant stopped his abusive conduct and apologized after issuing the threat that C.G. would die before defendant would live without her. The rape ensued only after C.G. did not accept defendants apology, his attempts to hug her, or his efforts to get her to consent to have sex with him. The false imprisonment was not committed to facilitate the rape; rather, the sexual act was completed and defendant had left the room. He returned, and the false imprisonment incident ensued when he became angry at something C.G. said. Thus, section 654 does not preclude imposition of unstayed sentences on any of the three counts.

THE COURT ERRONEOUSLY IMPOSED SENTENCE ON COUNT 11

The jurys written verdict shows that it found defendant not guilty on count 11, and the oral record shows that this was the jurys true verdict. Nevertheless, as the Attorney General points out, the courts minutes show that defendant was convicted on count 11, and the court imposed sentence on that count. The sentence was clearly unauthorized, in that it could not lawfully be imposed under any circumstance in the particular case. (People v. Scott (1994) 9 Cal.4th 331, 354.) We will order the superior court to issue amended minutes to reflect that defendant was acquitted on count 11 and to issue an amended abstract of judgment, deleting the sentence on count 11. The abstract of judgment must also be amended to reflect defendants misdemeanor conviction and sentence on count 10, possession of anabolic steroids. (Defendant was sentenced to time served on count 10; thus, correcting the abstract of judgment does not affect defendants sentence.)

DISPOSITION

The judgment is affirmed, as modified. We direct the superior court to issue amended minutes to reflect that defendant was acquitted on count 11 and to issue an amended abstract of judgment, deleting the sentence on count 11 and reflecting the misdemeanor conviction and sentence on count 10. Copies of the amended minutes and

abstract of judgment are to be provided to the parties and to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Richli

J.

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^[1]All statutory citations refer to the Penal Code, unless otherwise specified.

^[2]As discussed below, the sentencing minutes erroneously reflect that defendant was convicted on count 11.

^[3]Some of the confusion results from the trial courts decision not to address the issues exactly as they were raised in defendants new trial motions. This is discussed both in this section and in the subsequent section of this opinion, in which we address defendants claims of prosecutorial misconduct.

^[4]In his reply brief, for example, defendant argues that trial counsel should not have advised him to reject the pending plea bargain when there was crucial discovery trial counsel had not yet received. He did not make that argument in the trial court. He also reiterates that trial counsel failed to discharge his duty to investigate. We address that contention below, in the discussion concerning prosecutorial misconduct.

^[5]The court referred to the hearing as a habeas corpus proceeding and also as a hearing on a motion for new trial. Defense counsel referred to it as a new trial motion.

^[6]Defendant has not separately raised any issue on appeal as to the admissibility of this evidence, as required by rule 8.204(a)(1)(B) of the California Rules of Court. We therefore disregard it.

^[7]As pertinent, Evidence Code sections 1108 and 1109 provide as follows, respectively:

In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. (Evid. Code,  1108, subd. (a).)

Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. (Evid. Code, 1109, subd. (a)(1).)

Both sections permit the use of the specified type of evidence to support an inference that the defendant acted in conformity with a propensity to commit such crimes. (People v. Falsetta (1999) 21 Cal.4th 903, 910-922; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-1316.)

The prosecutor filed a motion in limine seeking to use this evidence, as well as evidence of other instances of sexual offenses and domestic violence. The courts ruling is not included in the record. However, the court instructed the jury on the use of the evidence of prior sexual offenses and prior instances of domestic violence.

^[8]Section 871.6 provides, If in a felony case the magistrate sets the preliminary examination beyond the time specified in Section 859b, in violation of Section 859b, or continues the preliminary hearing without good cause and good cause is required by law for such a continuance, the people or the defendant may file a petition for writ of mandate or prohibition in the superior court seeking immediate appellate review of the ruling setting the hearing or granting the continuance.

^[9]Section 859b provides, as to any defendant, whether he or she is in custody or out of custody, that the complaint must be dismissed if the preliminary hearing is not held within 60 days after the date of the arraignment or plea on the complaint, unless the defendant personally waives his or her right to a preliminary [hearing] within the 60-day period.

^[10]In his opening brief, defendant also states that a new trial may be ordered when the court has misdirected the jury. (See 1181, subd. 5.) He does not assert that the jury was misdirected, however, and we will therefore not address this aspect of his argument.

^[11]Defendant was acquitted on count 11, and we therefore need not address any issue pertaining to that count. As to count 3, although a motion for acquittal on that count was made at the close of the prosecutions case-in-chief, it was not based on the same grounds urged in the new trial motion and on appeal.