P. v. Nelson
Filed 10/16/07 P. v. Nelson CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. RAYMOND LESANDER NELSON, Defendant and Appellant. | C053154 (Sup.Ct. No. 04F06533) |
A jury convicted defendant of corporal injury to the mother of his child (Pen. Code, 273.5, subd. (a)), with the allegation of a prior conviction of the same (Pen. Code, 273.5, subd. (e)(2)), and forcible rape (Pen. Code, 261, subd. (a)(2)). Sentenced to seven years four months in prison, defendant appeals. He challenges a jury instruction that has been approved by the Supreme Court and contends that Penal Code section 654 prohibits sentences on both crimes because he had a single intent. We affirm.
FACTS
The victim and defendant met in late 2002 and began a turbulent relationship. In 2003, after several acts of domestic violence, defendant was convicted of domestic violence and sent to jail. As a result of the conviction, he lost his job as a correctional officer.
While defendant was in jail, the victim visited him. After his conviction, defendant was not allowed to drink alcohol. The victim believed the violence would stop. It did not.
In April 2004, the victim gave birth to defendants daughter.
On July 7, 2004, the victim and defendant got into an argument about her not doing the dishes. During the fight, defendant would start to hand the victim the child and then pull her back.
The next morning the victim was preparing to go to orientation for a new job. There was tension from the fight the night before. They were still arguing. On the way to work the victim called defendant twice and got no answer. She became concerned that defendant would take the child, as he had done before.
The victim called her cousins wife. After speaking with her, the victim decided to end the relationship with defendant. She returned to the apartment and told defendant she could not take it anymore. She went into the bedroom to get a few things.
Defendant followed her in, pushed her against the closet and grabbed her hair as she fell. She told him she was going to call the police; defendant laughed and said they just babysat him before. Defendant grabbed the victims cell phone and threw it into the bathroom, breaking it.
The victim ran into the living room to get her daughter. The next thing she knew she was on the ground in the hallway and defendant was squeezing her neck. He began to pull her clothes off. Defendant said, let me poke it and lets fuck because Im not going to have pussy like this in a while. Defendant raped her. The victim got away and ran out the front door.
Defendant denied the offenses. He claimed the victim began the argument and hit him first. He struggled with her, breaking the zipper on her jeans, to get his car keys. He did not rape her. Defendant originally told the detective there was no physical altercation.
DISCUSSION
I
Evidence of defendants prior acts of domestic violence was admitted at trial and the court instructed the jury on it in the language of CALJIC No. 2.50.02 (2005 rev.).[1] Defendant contends this instruction violated due process because it implied that if the jury found, by a standard greater than preponderance of the evidence, that he committed prior acts of domestic violence, that evidence was sufficient to prove his guilt of the charges. This contention is meritless.
As defendant recognizes, this court approved a substantially similar instruction in People v. Pescador (2004) 119 Cal.App.4th 252, 261. We noted that in People v. Reliford (2003) 29 Cal.4th 1007, the California Supreme Court approved a similar instruction, which addresses the admission of defendants prior uncharged sexual offenses under Evidence Code section 1108. This court is, of course, bound to follow Reliford. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
The primary difference between the instruction given here and those at issue in Reliford, supra, 29 Cal.4th 1007, and Pescador, supra, 119 Cal.App.4th 252, is that this instruction more explicitly tells the jury that defendants prior domestic violence is simply one item of evidence to consider. This change addresses one of the criticisms urged in People v. Reliford, at page 1015. Thus, the instruction given is even less objectionable than those approved in Reliford and Pescador.
II
Defendant contends the trial court erred in imposing a separate punishment for the violation of Penal Code section 273.5. He contends that offense could not be punished separately from the rape because both offenses were committed in an indivisible course of conduct with a single intent.
Penal Code section 654 prohibits punishment for separate offenses arising out of the same act or omission; its purpose is to ensure that the defendants punishment is commensurate with his culpability. (People v. Perez (1979) 23 Cal.3d 545, 550-551.) Although Penal Code section 654 speaks of the same act or omission, its protection has been extended to cases where different offenses are committed during a course of conduct deemed to be indivisible in time[.] (People v. Beamon (1973) 8 Cal.3d 625, 639.) In determining whether the transaction is divisible, we look to the defendants intent and objective, not the temporal proximity of his offenses. (People v. Harrison (1989) 48 Cal.3d 321, 335.) If the defendant had multiple criminal objectives, which are independent of and not merely incidental to each other, he may be punished for each crime he commits. (Ibid.)
In sentencing defendant on both rape and corporal injury to the mother of his child, the trial court implicitly found defendant had more than one intent and objective. On appeal, we
affirm if that factual determination is supported by substantial
evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.) It is.
Defendant contends he had only one intent -- rage that the victim was ending the relationship. The evidence, however, shows that during his assault on her, he formed a separate intent to rape her. Where a defendant has consecutive, similar intents, separate intents have been found. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.) After the victim announced the relationship was over, defendant followed her into the bedroom and pushed her into the closet and grabbed her hair. When she said she would call the police, he took her cell phone and broke it. Rather than simply continue to strike the victim in anger, defendant decided to escalate the assault to forcible rape. He told her, let me poke it and lets fuck because Im not going to have pussy like this in a while.
Defining defendants sole intent and objective as rage is much too broad and amorphous to determine the applicability of section 654. (People v. Perez, supra, 23 Cal.3d 545, 552 [Pen. Code, 654 did not preclude punishment for each sex offense].) To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statutes purpose to insure that a defendants punishment will be commensurate with his culpability. (Ibid.) Defendant was more culpable because he decided to rape the victim, as well as beat her.
DISPOSITION
The judgment is affirmed.
MORRISON , J.
We concur:
DAVIS, Acting P.J.
HULL, J.
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[1] The court instructed the jury in part as follows: If you find that the defendant has committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit other offenses involving domestic violence. [] If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused. [] However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offense. [] If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider along with all other evidence in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. [] You must not consider this evidence for any other purpose.
