P. v. Brawley

Filed 6/16/06 P. v. Brawley CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THREE

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.

Diane Nichols, 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, Assistant Attorney General, Erika Hiramatsu and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

Defendant Daniel Michael Brawley pleaded guilty to elder abuse, two counts of making criminal threats, and assault with a deadly weapon. He was sentenced to three years in prison, which was the intended sentence specified in defendant's written plea form. Defendant's sentences on the two counts of making criminal threats were not stayed, but rather were imposed to be served concurrently. Defendant contends on appeal that because the criminal threats occurred at the same time as, and were part of an indivisible course of conduct with the other crimes, the sentences for the criminal threats convictions should have been stayed under Penal Code section 654.

Defendant, however, did not object to the imposition of concurrent sentences at the change of plea/sentencing hearing. Under California Rules of Court, rule 4.412(b) and People v. Hester (2000) 22 Cal.4th 290, we conclude defendant waived this argument, and we therefore affirm the judgment.

Statement of Facts[1]

At approximately 4:00 a.m. on November 16, 2004, defendant (then 40 years old) arrived at the home of his mother, Diane Ferguson, after being released from jail. Ferguson and her 92‑year-old mother, Doris Ward, left the house later that day. When they returned, defendant was in Ferguson's bed. When Ferguson and Ward asked defendant to move to another room, he became angry and began pushing, hitting, and yelling at them. Ferguson retreated to the bathroom to call the police. Defendant banged on the bathroom door, and punched several holes in it.

Ward had moved into the living room; defendant then entered the living room and overturned the recliner chair in which Ward was sitting. Ward hit her head on a table as she fell to the ground. Defendant punched Ward in the temple area of her face. Holding a knife, defendant told Ward he would cut her throat. He also threatened to cut Ferguson's throat, the dog's throat, and his own throat. Ward was frightened, and was afraid defendant would carry out his threats and kill them.

Ferguson then came into the living room and saw Ward on the floor. Defendant threw Ferguson to the floor. Defendant knelt down beside Ferguson, held a pair of scissors to her throat, and said, â€