Filed 7/16/13 P. v. Hammond CA5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ROBERT ALLEN HAMMOND,
Defendant and
Appellant.
F064020
(Super.
Ct. No. VCF256413)
APPEAL
from a judgment of the Superior Court
of
County. Gerald F.
Sevier, Judge.
Gabriel
Bassan, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna,
Rebecca Whitfield, and Charity Whitney, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
Defendant Robert Allen Hammond was charged with
allegation that he personally used a deadly weapon in the commission of the
offense (§ 969f), two counts of making criminal threats (§ 422) with
a special allegation that defendant personally used a deadly weapon during the
commission of the offenses (§ 12022, subd. (b)(1)), dissuading a witness
from reporting a crime (§ 136.1, subd. (b)(1)), assault by means likely to
produce great bodily injury (§ 245, subd. (a)(1)), corporal injury to a
spouse (§ 273.5, subd. (a)), and resisting a peace officer (§ 148,
subd. (a)(1)). Prior to trial, defendant
pled no contest to the resisting arrest charge.
After trial, the jury found defendant guilty of the criminal threats and
dissuading a witness charges, but found defendant not guilty of the remaining
charges and allegations. The jury also
acquitted defendant of all lesser included offenses with the exception of
simple assault (§ 240) as it related to the assault by means likely to
produce great bodily injury charge; as to that lesser offense, the jury
declared it was hopelessly deadlocked and the trial court declared a
mistrial. The prosecution subsequently
dismissed that count.
The trial
court sentenced defendant to a total term of three years four months,
consisting of a two-year term for one of the
eight-month sentences for each of the remaining charges. Execution of the sentence was suspended and
defendant was placed on probation for a three-year term with the condition that
he serve 365 days in the county jail.
Defendant
appealed and contends the trial court committed prejudicial error as
follows: (1) by admitting evidence
relating to marital infidelity that was irrelevant and unduly prejudicial, (2)
by instructing the jury that evidence could be used to establish his state of
mind, and (3) by sentencing him to consecutive terms on the criminal threats
and dissuading a witness charges. In addition,
he claims that the prospective application of recent amendments to section 4019
violate principles of equal protection and that he is entitled to additional
conduct credits. We agree the trial
court erred in sentencing defendant on both the criminal threat and
relate to the same act and same victim.
We reject defendant’s remaining contentions.
FACTS
Defendant
and Melissa Hammond (Melissa) were married on April 1, 2011. The two lived together in their home along
with Melissa’s son, Joshua Taylor, and his two children. Taylor and his children had moved into the
home approximately two weeks before the incident at issue.
During the
morning hours of August 13, 2011, defendant sent Melissa a text message
asking to talk to her about some marital issues. Melissa agreed to talk to him and the two
went into the backyard after defendant returned home from some early morning
errands. While outside, the two began to
argue over an accusation Melissa made to defendant about his infidelity. The argument became heated. During the argument, defendant destroyed some
items from within the home and also smashed Melissa’s wedding ring with a hammer. Defendant then accused Melissa of having sex
with Taylor. Specifically defendant
said, “‘Are you fucking your son?’†and then stated, “‘I think you are because
I’m not getting any pussy. I think
there’s some fucking incest going on.’â€
Melissa told defendant not to let Taylor hear such an accusation or he
would “cause trouble.â€
Defendant
went inside the home to confront Taylor, locking Melissa outside. Melissa retrieved her keys and went inside
after defendant, finding him in Taylor’s room accusing him of sleeping with
Melissa. Taylor told defendant to leave
the room so as not to wake his sleeping children. Melissa turned briefly and when she looked
back she saw defendant punch Taylor in the face.
Defendant
and Taylor then began to wrestle in the hallway and Taylor yelled for Melissa
to call 911. Melissa turned to find a phone
and heard glass breaking. When she
looked back, Melissa saw Taylor on all fours on the ground with glass on his
body. Defendant was standing over
Taylor, beating him. Melissa attempted
to intervene by running into defendant.
In response, defendant struck Melissa in the head, pulled her down by
her hair, and began striking her on her legs.
During the altercation, Melissa scratched defendant’s face in an effort
to stop him from hitting Taylor.
While
defendant was hitting Melissa, Taylor escaped and ran outside. Defendant chased after Taylor, at one point
grabbing him by the shirt and ripping it off his body. Once outside, defendant continued to attack
Taylor, who was on the ground trying to protect his head. At that point, Melissa ran back inside to the
kitchen looking for her phone so she could call the police.
Melissa was
in the kitchen and Taylor ran by, yelling for her to call the police. Defendant also ran by the kitchen but Melissa
was able to stop him and asked him why he was doing this. Defendant entered the kitchen and said “this
is your fault, why couldn’t you just believe me. You should have just believed me.†Defendant pushed Melissa up against the
sink. About that time, Taylor yelled at
Melissa to get away from defendant and stated either he had or was just about
to call the police. Defendant responded,
“if you call the cops … I will kill you and your cunt ass mom.†Melissa went toward Taylor when defendant
picked up a knife that was on the counter and made a jabbing motion with it
toward Taylor, coming within inches of him.
Melissa was between Taylor and defendant, and defendant reached over
Melissa in an effort to attack Taylor.
Subsequently, defendant dropped the knife and told Taylor “let me talk
to you, bitch†and chased Taylor outside again.
Melissa
followed, and defendant ultimately ran back inside, locking the door. As a result of the incident Melissa suffered
a lump on her head, had some of her hair torn out, and had bruising on her legs
and arm.
Taylor
testified that on the day in question he was in his room with his sleeping
children when defendant barged in and accused him of having sex with
Melissa. Taylor told defendant he was
crazy and told him to leave. Defendant
and Taylor were face-to-face and defendant made a reaching motion toward
Taylor’s sleeping son. Taylor pushed
defendant’s arms away from the child and told him to stop. At that point defendant punched Taylor in the
face and the two began to wrestle in the hallway. While on the ground in the hall, defendant
beat Taylor, punching him in the head, neck, ribs, and back. When Taylor tried to get up to run, he felt
defendant hit him with a picture frame and felt glass break on the back of his
head. The two rolled around on the floor
exchanging punches while Taylor yelled for Melissa to call the police.
Taylor then
saw Melissa attempt to intervene and saw defendant strike Melissa. He saw defendant pull Melissa by the hair and
punch her in her legs. Taylor was able
to get up and run outside but defendant followed. Once outside, defendant was able to catch
Taylor and again began beating him while Taylor was on the ground trying to
protect himself. Taylor was able to get
up and run back inside to look for his phone to call the police. Taylor went into his room and when he came
out he met defendant in the hallway.
Once again Taylor went to the ground while defendant continued to beat
him. Taylor was able to get away and run
into the kitchen where he found Melissa.
Defendant followed him into the kitchen and began arguing with Melissa
while Taylor left the room to look for his phone. When Taylor returned to the kitchen, he saw
defendant and Melissa arguing. Taylor
told defendant that he was calling the police and defendant said “‘if you call
the cops, I’ll kill you and your cunt ass mom’†and grabbed a knife and began
making stabbing motions toward him over Melissa.
Defendant
dropped the knife and told Taylor “come here, you little bitch, let me talk to
you.†Taylor went outside and defendant
followed, telling him not to call the police.
Defendant then said if Taylor was going to call the police, then he
would as well. While on the phone with
the police, defendant attempted to assault Taylor again. Defendant ran inside the house and locked the
door. Fearing for his children’s safety,
Taylor went to the front of the house and kicked open the front door. While Taylor was on the phone with the
dispatcher, he noticed that defendant was also calling the police.
Taylor
stated that the only time he ever punched defendant during the fight was after
defendant hit him with the picture frame.
Other than that incident, Taylor never punched defendant. As a result of the incident Taylor sustained
scratches to his back and neck, lumps to the back of his head, lacerations to
his ear, knee and foot injuries, a slightly black eye, and bruising to his
ribs. He did not require any medical
treatment.
Police
Sergeant Derrick Porter was dispatched to the home at approximately 11:30
a.m. He spoke to defendant who was calm
at the time and to Melissa who was very upset and shaking. He found picture frames and glass on the
floor of the home and a knife on the kitchen counter. Although Sergeant Porter collected the knife,
he did not have it analyzed for fingerprints.
He did not see any injuries to Melissa’s head, but did notice an injury
to her arm. Defendant had scratches to
his face, neck, and back.
Police
Officer Ryan Willcutt also responded to defendant’s home. He noted that Taylor was out of breath and
had swelling and a cut to his left eye.
In addition he had red marks, scratches, and bruises to his back, ribs,
and upper torso. He also had an injury
to his right ear which appeared consistent with being cut by glass. Defendant did not have any injuries to his head,
but did have scratches to his face, a cut on his hand, scrapes on his leg, and
redness on his forearm.
Defense Case
Defendant
testified that prior to the incident, he and Melissa were having problems in
their marriage, and Melissa had accused him of infidelity. Once Taylor moved into the home, defendant
noted there was no longer a physical relationship between him and his
wife. On the date in question, he talked
to Melissa about their marriage and ultimately asked her if she wanted a
divorce. She responded that she did and
threw her ring at him. Defendant smashed
the ring with a hammer and shortly thereafter accused Melissa of sleeping with
Taylor. Melissa challenged defendant to
ask that question to Taylor, noting that Taylor would “probably knock your
f’ing teeth out of your head†for making such an accusation.
Defendant
went to Taylor’s room and told him they needed to talk. He asked Taylor to leave the room since the
children were sleeping, but Taylor refused.
When defendant asked Taylor if he was sleeping with Melissa, Taylor
attacked him, knocking him into the hallway.
Taylor then began beating defendant and defendant began to defend
himself. During the fight, Taylor struck
defendant with the picture frame, breaking the glass. The fight continued. Eventually, defendant followed Taylor into
the backyard. Taylor was running from
defendant and defendant was telling him he wanted to talk. In the backyard the two got into a tussle
and, eventually, Taylor went back into the house.
Defendant
followed and went into the kitchen where he found Melissa and Taylor. While in the kitchen, Taylor picked up a
knife from the counter and began making jabbing motions toward defendant. Melissa was between Taylor and defendant, and
defendant used Melissa as a shield so that Taylor would not stab him. Taylor threw the knife down and all three
proceeded to the backyard where Taylor called 911. Defendant also attempted to call 911 but
Taylor slapped the phone from his hand.
Defendant retrieved his phone and was able to call the police as well.
As a result
of the fight defendant suffered cuts to his face, as well as redness to his
chest, shoulders, and stomach. Defendant
did not know how Melissa received any injuries.
He testified that he never struck her intentionally, but speculated that
she could have been injured when she tried to break up the fight. Defendant denied ever making any threats to
Melissa or Taylor. He admitted hitting
Taylor, but only in self-defense.
Defendant
denied being unfaithful to his wife in a physical manner although he did admit
to speaking to other women. Defendant
stated that during the argument he was hurt as he felt his marriage was
ending. When defendant smashed Melissa’s
ring and destroyed items within the house, he did that out of hurt rather than
anger, although he admitted he was “probably†a little angry.
DISCUSSION
I. The Trial Court Properly
Admitted Evidence of Defendant’s Alleged Infidelity
Defendant
argues admission of evidence that Melissa accused him of infidelity was
irrelevant and highly prejudicial.
Further, he argues the limiting instruction permitting the jury to
consider the evidence for his state of mind was improper and prejudicial. We find no error in the admission of the
evidence and the limiting instruction to the jury. Consequently, we need not consider
defendant’s alternative contention that trial counsel was ineffective.
Procedural background
Before
trial, the defense moved to exclude any evidence relating to prior alleged acts
of infidelity, claiming the evidence had “no probative value†and was highly
prejudicial. In preliminary discussions
of the issue, the prosecution argued the accusations leading up to the physical
fight were relevant to explain defendant’s conduct of accusing Taylor of having
sex with Melissa. The prosecutor
explained the argument began because of “defendant’s infidelity, and that’s
when he accused [Melissa] of sleeping with her son, and that we feel is
relevant to come into the trial.†As the
prosecutor made clear, it was defendant’s accusation that Taylor and Melissa
were sleeping together that caused the physical fight at issue. Both parties and the court agreed that this
accusation was in fact relevant to the trial and defendant does not seem to
dispute that relevancy on appeal.
The
prosecutor further pointed out that defendant’s alleged infidelity was also
relevant because it was the basis for the argument, and it was the accusation
of defendant’s infidelity that precipitated defendant’s accusation against Melissa
and Taylor. The court initially
questioned the relevance, noting “so there’s an argument. The reason for the argument seems
inconsequential unless somehow it’s tied
to the assertions that [defendant] allegedly is making about his wife and Mr.
Taylor.†(Italics added.) The prosecutor argued that was exactly why
the statements were relevant, that the accusation of defendant’s infidelity led
to the accusation that Melissa and Taylor were involved in a sexual
relationship. Furthermore, the
prosecutor pointed to Melissa’s testimony from the preliminary hearing
explaining that defendant himself referenced this accusation during the actual
assault, telling her “‘This is your fault.
Why didn’t you just believe me?’â€
These statements occurred immediately before the threat. The court took the matter under submission.
When the
court reconvened, it inquired into when the accusation of infidelity took place
in relation to the assault. The
prosecutor explained that defendant and Melissa were discussing that issue when
defendant accused her of having sex with Taylor. The prosecutor also directed the court to
portions of the preliminary hearing transcript where Melissa referenced the
issue of infidelity in relation to the assault and threats in this case. The court then announced its tentative
ruling, noting that “it seems as if it’s reflective on some part of
[defendant’s] state of mind and … that it’s relevant circumstantial evidence as
to other issues. [¶] That’s … what
it seems at first blush. I will take a
look at the testimony.†The prosecutor
clarified that the evidence would also go to defendant’s motive in addition to
his state of mind, and the court acknowledged it understood the argument. The following day after reviewing the
testimony at the preliminary hearing, the trial court ruled that the evidence
of the infidelity was admissible, finding it was an integral part of the
argument and invited counsel to propose a limiting instruction.
During the
instruction conference, the defense proposed using CALCRIM No. 303, the
limited purpose instruction, as to the evidence relating to defendant’s
infidelity. The court stated it would
give the instruction as proposed.
name="_ftnref2" title="">[2] While reading the proposed instruction to the
jury, the court stopped and had a sidebar conference with the parties. During that discussion, the court noted that
part of the reason the court admitted the evidence was to show defendant’s
state of mind during the argument, which was not reflected in the proposed
instruction. The court then modified the
instruction to allow the jury to consider the evidence for that purpose. Defense counsel seemed to concede that was
part of the purpose for which the evidence was admitted.
Defendant
argues the evidence of his alleged infidelity was admitted solely for the
purpose of explaining the context of the underlying argument. We disagree with this premise. As is apparent from the entire in limine
discussion, the ruling, and the court’s comments during the instruction, the
evidence was admitted for two reasons:
(1) to show the context of the argument, specifically, how defendant
came to accuse Melissa and Taylor of engaging in sexual relations, and (2) to
demonstrate his state of mind at the time of the offense. Keeping these purposes in mind, we now turn
to the propriety of this ruling.
Analysis
The trial
court admitted the evidence of defendant’s infidelity to show the context of
the argument and to show defendant’s state of mind. This ruling was not error. Defendant argues the subject of the argument
was inconsequential, therefore, the evidence was irrelevant. Further, he contends, allegations of his
infidelity were irrelevant to his state of mind at the time of the offense. Defendant is mistaken on both points.
Evidence
Code section 351 provides that “all relevant evidence is admissible,†unless it
is otherwise prohibited. Relevant
evidence is defined as evidence “having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.†(Evid. Code, § 210.) “Evidence is relevant if it tends
‘“logically, naturally, and by reasonable inference†to establish material
facts such as identity, intent, or motive.’â€
(People v. Williams
(2008) 43 Cal.4th 584, 633-634.)
A trial court enjoys broad discretion in determining the relevancy of
evidence. (People v. Cash (2002)
28 Cal.4th 703, 727.) We review a trial
court’s rulings on relevance and the admissibility of evidence for abuse of
discretion. (People v. Aguilar
(2010) 181 Cal.App.4th 966, 973.)
Defendant
argues that in addition to being irrelevant the evidence was also unduly
prejudicial under Evidence Code section 352.
Similar to the determination of relevance, the trial court has broad
discretion in determining “whether the probative value of particular evidence
is outweighed by concerns of undue prejudice, confusion or consumption of timeâ€
under Evidence Code section 352. (
1060, 1124.) The court’s ruling under
this section will be upheld unless it constitutes an abuse of discretion. (Id.
at p. 1124.) Under this deferential
standard of review, a trial court’s ruling will “‘not be disturbed on appeal
exercised its discretion in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of
justice.’†(Ibid.)
Reviewing
the evidence under the above standards, it is clear the trial court did not
abuse its discretion in permitting the evidence of defendant’s infidelity on
the limited issues of providing the context of the argument and on the issue of
defendant’s state of mind. Evidence of
infidelity is admissible when relevant to prove the state of the marital
relationship and therefore to prove a motive to commit the underlying
crime. (People v. Houston (2005) 130 Cal.App.4th 279, 307.)
Here the
evidence was admitted to explain the context of the argument as well as
defendant’s state of mind at the time of the offense. It is apparent the argument began over the
allegation of defendant’s infidelity. In
response, defendant accused Melissa of being unfaithful and of incest. He then accused Taylor of having a sexual relationship
with Melissa, which was the direct cause of the physical altercation. Therefore, the allegation of infidelity was
the precipitating event of the offenses at issue and tended to explain why
defendant accused Taylor of sexual relations with Melissa. Thus, the argument was so intertwined with
the physical fight that they could not be separated from each other. In this context, the reason for the fight is
relevant.
Defendant
argues the subject of the argument itself was irrelevant because there was no
dispute that an argument took place. We
disagree. As trial counsel conceded,
defendant’s accusation against Taylor was, in fact, relevant to the subsequent
conduct. Likewise, the accusation that
precipitated defendant’s conduct was relevant to explain the context of the
argument and defendant’s subsequent actions.
This is apparent from the fact that during the physical fight and
immediately preceding the threats defendant references the allegation himself
by telling Melissa that the fight was her fault and she should have just
believed him. This demonstrates the
underlying accusation of infidelity was inextricably intertwined with what
happened afterward.
On this
point, People v. McKinnon (2011) 52
Cal.4th 610 is instructive. There, the
defendant was convicted of murder after evidence established he walked up to
the victim and shot him after stating, “‘This is for Scotty.’†(Id.
at p. 655.) During trial, gang evidence
was introduced to show the defendant’s motive and intent for murdering the
victim and to give meaning to the defendant’s statement. (Ibid.) The California Supreme Court held the trial
court’s admission of the evidence was proper as it was probative of the
defendant’s motive for the shooting and explained his statement. Further, the court found the evidence was not
unduly prejudicial as it focused on the reason the defendant may have wanted to
kill the victim. (Id. at p. 656.) Likewise
here, the evidence of Melissa’s accusation that defendant had been unfaithful
provided a context for the argument as well as defendant’s specific statements
during the crime.
In
addition, the evidence had a tendency to demonstrate defendant’s state of mind
during the crimes. To establish a
violation of section 422, the prosecution must prove, among other things, “that
the defendant made the threat ‘with the specific intent that the statement … is
to be taken as a threat, even if there is no intent of actually carrying it
out.’†(People v. Toledo (2001)
26 Cal.4th 221, 228.) “A defendant’s
intent is rarely susceptible of direct proof, and may be inferred from the
facts and circumstances surrounding the offense.†(People v. Felix (2009) 172
Cal.App.4th 1618, 1624.)
Despite
defendant’s argument to the contrary, it is apparent defendant’s state of mind
was relevant to the charged offenses.
The evidence that Melissa accused defendant of cheating was
circumstantial evidence of his state of mind, which is relevant to the charges
in the case. It explains the situation
and the reason defendant threatened the victims. It also tended to show that defendant was
angry. Of course, his anger was relevant
as to whether he made the threats in issue.
Melissa
accused defendant of cheating and, in response, he accused Melissa of having
sexual relations with Taylor. Next,
defendant confronted Taylor and a physical fight ensued. At that point, defendant blamed Melissa for
starting the fight, he told her the situation was her fault and had she just
believed him, the fight would not have happened. He then made the threat that he would kill
the victims. The circumstantial evidence
of defendant’s anger toward Melissa at the time as well as his intent to make
the threat had some tendency to prove that defendant was so upset with Melissa
that he intended for his threat to be taken as a threat. Therefore, the evidence was relevant to
defendant’s state of mind at the time of the offense.
Defendant further argues the
evidence was unduly prejudicial, amounting to an attack on his character. In support of his argument, he relies upon
(2008) 165 Cal.App.4th 1011. That
case is inapposite. In Winfred
D., the plaintiff sued the
defendant tire company, alleging a tire defect caused an accident leaving the
plaintiff severely injured. (
caused by a tire defect, but rather from the plaintiff’s action in overloading
the vehicle. (Ibid.) During the trial, the
defendants were permitted to introduce evidence that the plaintiff had an
affair while married to his first wife, he later married his mistress without
divorcing his first wife, and that he subsequently had an affair with yet
another woman, resulting in the birth of two children. (Ibid.)
The
appellate court held the admission of such evidence was irrelevant to the
underlying proceedings, and to the extent that it could be considered relevant,
the probative value was far outweighed by its prejudicial impact resulting in a
miscarriage of justice. (
D. v. Michelin North America, Inc., supra, 165 Cal.App.4th at p. 1014.) As is relevant to our discussion here, the
defendants sought to introduce the evidence to explain the plaintiff’s motive
to overload the van. The defendants
theorized the plaintiff had an incentive to overload the van so he could make more
money because he had two families to support.
(Id. at p. 1037.) The appellate court recognized that such
evidence could be relevant to establish his financial condition; however,
virtually no financial evidence was presented in that case. (Ibid.) Based upon the evidence, probative value was
quite weak, while the prejudicial impact was significant. (Id.
at pp. 1037-1038.) As the court
explained, “[f]rom start to finish, [the defendants] painted [the plaintiff] as
a liar, cheater, womanizer, and man of low morals based principally, if not
solely, on what we have concluded was inadmissible evidence.†(Id.
at p. 1038.)
Unlike the situation in
fact probative of defendant’s state of mind at the time he committed the crimes
and provided the context for both the argument and for defendant’s statements
during the argument. Also unlike
unduly prejudicial. The evidence
consisted only of Melissa’s statements that she believed defendant was having
an affair and her testimony that he had admitted certain conduct to her. Defendant also testified Melissa had accused
him of being unfaithful, and he conceded he had spoken to other women and
admitted that to her. No collateral
evidence of any infidelity was ever produced at trial, nor was there any
coordinated and pervasive attack on his character. It certainly was not akin to the pervasive
use of the evidence as in Winfred D. Indeed, the prosecution never commented on
the alleged infidelity in either its closing or rebuttal arguments. Considering the relevancy of the evidence as
stated above and the limited prejudicial impact, we cannot find the admission
of the evidence was so arbitrary, capricious, or patently absurd as to
constitute an abuse of discretion.
Defendant goes on to contend the
trial court erred by modifying the proposed limiting instruction and allowing
the jury to consider the evidence relating to infidelity for defendant’s state
of mind. However, as we have already
explained, the evidence was properly admitted as relevant to defendant’s state
of mind. The trial court’s modification
of the instruction simply reflected the proper purpose of the evidence. Indeed, defendant does not contend the
instruction itself was somehow flawed; rather, his argument rests solely upon
his contention the jury should not have been allowed to consider the evidence
in relation to his state of mind. As the
instruction properly limited the use of the evidence, we find no error.
II. Defendant Cannot Be
Sentenced for Both Criminal Threats and Dissuading a Witness Pursuant to
Section 654.
Defendant contends his convictions
for criminal threats against Taylor and dissuading him as a witness are based
upon the same conduct and are both incident to the same intent and
objective. He concludes he may not be
separately punished for both crimes under section 654. We agree.
Section 654 provides in
pertinent part:
“An act or omission that is punishable in different ways
by 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 purpose of section 654 is to prevent multiple
punishment for a single act or omission, even though that act or omission
violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged
in separate counts and may result in multiple verdicts of guilt, the trial
court may impose sentence for only one offense—the one carrying the highest
punishment. [Citation.]†(People v. Liu (1996) 46 Cal.App.4th
1119, 1135.)
“If all
the offenses are incidental to one objective, the defendant may be punished for
any one of them, but not for more than one.
On the other hand, if the evidence discloses that a defendant
entertained multiple criminal objectives which were independent of and not
merely incidental to each other, the trial court may impose punishment for independent
violations committed in pursuit of each objective even though the violations
shared common acts or were parts of an otherwise indivisible course of
conduct.†(People v. Liu, supra, 46 Cal.App.4th at p.
1135.)
Section 654 “does not allow any multiple punishment,
including either concurrent or consecutive sentences.†(People v. Deloza (1998) 18 Cal.4th
585, 592.)
Here,
defendant was convicted of criminal threats and dissuading a witness for a
single act. The conduct that was the
subject of the crimes was defendant’s statement to the victims that “‘if you
call the cops … I will kill you and your cunt ass mom.’†Defendant’s threat was made expressly
contingent upon calling the police, thus it is obvious the threat was
incidental to the main purpose of dissuading Taylor from calling the police.
Indeed,
other courts have made the same finding on similar facts. In People
v. Mendoza (1997) 59 Cal.App.4th 1333, 1346, superseded by statute on other
grounds as stated in People v. Franz
(2001) 88 Cal.App.4th 1426, 1442, the court held that the defendant could not
be sentenced for both making a threat and dissuading a witness based upon the
same threat against a witness who had previously testified against his
brother. Likewise, in
v. Louie (2012) 203
Cal.App.4th 388, 394, 399, the court held that the defendant’s act of pointing
a gun at the victim, calling her “a cop-calling bitch,†and threatening her
constituted a single act within the meaning of section 654 and, therefore, he
could not be punished for both crimes.
Because
defendant’s actions of threatening and dissuading Taylor consisted of a single
act with a single intent and objective, he cannot be sentenced for both
offenses. (People v. Mendoza, supra,
59 Cal.App.4th at p. 1346; People v.
Louie, supra, 203 Cal.App.4th at
p. 399.) Consequently, the sentence on
count 4 must be stayed pursuant to section 654.
III. Defendant Was Awarded the
Proper Amount of Conduct Credits
Defendant
contends he should be awarded additional presentence credits based upon the
amendments to section 4019 that became operative on October 1, 2011. He argues failure to award retroactive credit
constitutes a violation of equal protection principles. He further argues he should receive enhanced
credits for the actual time spent in custody after October 1, 2011,
claiming the statutory language is ambiguous.
This court has previously addressed, and rejected, the specific
arguments raised by defendant in our decision in
v. Brown (2012) 54 Cal.4th 314; People
v. Kennedy (2012) 209 Cal.App.4th 385.)
4019, subdivision (h) specifically states that the changes increasing the
amount of conduct credits apply prospectively only. In Ellis, we concluded the intent of the
Legislature “was to have
the enhanced rate
apply only to
those defendants who
committed their crimes
on or after
1553.) It is undisputed that defendant
committed his offenses well before this date.
“The concept of equal protection
recognizes that persons who are similarly situated with respect to a law’s
legitimate purposes must be treated equally.
[Citation.]†(
54 Cal.4th at p. 328.) Reviewing
courts determine whether groups are “similarly situated†in the specific
context of the law being challenged, not whether the groups are “similarly
situated†in all respects. (Ellis, supra, 207 Cal.App.4th at p.
1551.)
In People v. Brown, the California Supreme Court noted
that the purpose of section 4019 is to authorize incentives for good behavior.
goal is not served “‘by rewarding prisoners who served time before the
incentives took effect and thus could not have modified their behavior in response….’†(Ellis, supra, 207 Cal.App.4th at p. 1551, quoting
54 Cal.4th at pp. 328–329.)
Therefore, prisoners who served time before and after amendments to
section 4019 are not “similarly situated†for equal protection purposes. (Ellis, supra, at p. 1551.)
Because defendant fails to show section 4019 treats “similarly situatedâ€
groups unequally, he asserts no cognizable equal protection claim.
Likewise, defendant’s argument that
he is entitled to enhanced conduct credits for the period between
October 1, 2011, and the date he was subsequently sentenced was considered
and rejected in Ellis. As we explained in Ellis, the statutory language on this point is not ambiguous. (Ellis,
supra, 207 Cal.App.4th at pp.
1552-1553.) Thus, for the reasons stated
in Ellis, we reject defendant’s
claim.
DISPOSITION
The judgment is modified to stay the
term on count 4, dissuading a witness (§ 136.1 subd. (b)), pursuant to
section 654.
trial court is ordered to amend the sentencing minute order reflecting this
modification. In all other respects, the
judgment is affirmed.
__________________________
PEÑA, J.
WE CONCUR:
________________________________
KANE, Acting P.J.
________________________________
FRANSON, J.
name="_ftn1" title="">[1]All
further references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2]It
appears the proposed instruction initially read as follows: “During the trial, certain evidence was
admitted for a limited purpose.
Specifically, evidence regarding [defendant]’s alleged actions with
other women was admitted to show the context of his argument with Melissa
Hammond. You may consider that evidence
only for that purpose and for no other.â€
