Filed 3/29/17 P. v. Tolento CA4/3








NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL SALVADOR TOLENTO,

Defendant and Appellant.


G053690

(Super. Ct. No. 15CF2361)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified with directions.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
A jury convicted Manuel Salvador Tolento of domestic battery causing injury with a prior conviction for domestic violence (Pen. Code, § 273.5, subds. (a) and (f)(1) [count 1]; all statutory references are to the Penal Code), kidnapping (§ 207, subd. (a) [count 2]), criminal threats (§ 422 [count 3]), misdemeanor violation of a protective order (§ 166, subd. (c)(1) [counts 7, 10]), and misdemeanor child endangerment (§ 273a, subd. (b) [counts 11-12]). Tolento appealed, and his appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). Tolento did not file a supplemental brief. After reviewing the record, we asked the parties to brief whether the trial court erred in failing to stay punishment for one or more offenses under section 654. We will accept the Attorney General’s concession the trial court erred by failing to stay punishment for counts 1 and 3, and modify the judgment accordingly. Our review of the record discloses no other arguable issues.

I
FACTS AND PROCEDURAL HISTORY
E.E. testified at trial in June 2016 she had three children, a daughter (born December 2010), and two sons fathered by Tolento (born May 2014 and May 2015). On September 26, 2015, around 6:00 p.m., Tolento drove up to E.E. and the boys near a grocery store. E.E. told him they could not see each other because of a protective order. Tolento cried and asked to see the children. She relented and let him drive her and the boys and her back to her parents’ home where she lived. Tolento’s car did not have seat belts, so he used a rope to anchor the child car seats to the vehicle. Instead of going home, however, Tolento drove around for several hours. He stopped several times, and got out of the car to walk around. During the drive, E.E. grew frightened and told Tolento she was going to phone his sister for assistance, but he took her phone away. During one of the stops, E.E. found her phone and called 911 around 11:30 p.m. During the 911 phone call, she mentioned Tolento had a knife and threatened to crash the car. Tolento saw E.E. on the phone and ran back to the car. Tolento panicked, took her home, and drove off.
Early the next morning around 5:00 a.m., Tolento knocked on E.E.’s bedroom window while she slept. He said he wanted his “stuff” back, including his cell phone. He appeared to be under the influence of drugs. E.E. called 911 while Tolento tried to open the window. E.E.’s father went outside, pushed Tolento and told him to leave. Tolento again returned the following morning, but E.E. closed her bedroom window.
E.E. told a police officer she tried to walk away from Tolento at the store, but he pulled on her diaper bag, leaving marks on her left arm and shoulder, and forced her into the car, threatening to use a knife. Tolento said if she did not get in the car, and if she screamed or called 911, he would “shank” (stab) her. When she and the children got into the car, she tried to call 911, but he took her phone. Tolento did not use a car seat or seat belts for the children. He drove away fast and recklessly through residential neighborhoods with the open knife between his legs. E.E. kept her head down and cried. Tolento yelled at her for seeing other men and called her a whore and a slut. When they got back to her parents’ house, he pushed her through the car window. As he drove away, he said, “Watch. I’ll catch you [slippin.’]”
The protective order arose from a March 23, 2015 incident. A bystander saw Tolento throw a punch at E.E., and told a police officer he saw Tolento shove E.E. to the ground. E.E. testified she was pregnant and began having contractions and sat down with Tolento assisting her, but she told a police officer she tripped and fell, and did not mention contractions.
After the close of evidence, the trial court acquitted (§ 1118.1) Tolento of felony child endangerment (§ 273a, subd. (a) [counts 5 & 6]) and attempted burglary (§§ 459-460, subd.(a), 664, subd. (a) [counts 8 & 9]). The court amended the information to add counts for misdemeanor child endangerment (counts 11 & 12) and attempted unauthorized entry of a dwelling (§§ 602.5, subd. (a), 664 [counts 13 & 14].) The jury acquitted Tolento of the attempted unauthorized entry charges, and deadlocked on an assault with a knife charge (§ 245, subd. (a)(1); count 4). The jury also could not agree whether Tolento used a knife while committing the felonies (§ 12022, subd. (b)(1)). The court declared a mistrial and dismissed the assault with a knife charge and knife enhancement allegations.
At sentencing in June 2016, the trial court imposed a five-year midterm for kidnapping, concurrent midterms for the other felonies, and concurrent maximum terms for the misdemeanors. It also imposed a $300 restitution fine (§ 1202.4), imposed and stayed a $300 parole revocation fine (§ 1202.45), and imposed other fees and assessments (§§ 1465.8, 70373, subd. (a)(1)). The court awarded presentence custody credits totaling 286 days, including 249 actual days and 37 days of conduct credit.




II
DISCUSSION
Section 654
After reviewing the record, we asked the parties to brief whether the trial court erred in failing to stay punishment for one or more offenses under section 654. Tolento argues the trial court erred by failing to stay punishment for domestic battery causing injury (count 1), criminal threats (count 3), and violation of a protective order (counts 7 and 10). The Attorney General concedes section 654 bars separate punishment for counts 1 and 3, but argues substantial evidence supports an implied finding the convictions for violation of a protective order were divisible from the kidnapping because the offenses occurred one (count 7) and two (count 10) days after the kidnapping, which gave Tolento time to reflect and renew his intent before committing the later crimes.
Section 654, subdivision (a), provides: “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.” In addition to prohibiting multiple punishment for a single act, section 654 precludes multiple punishment where there is a course of criminal conduct comprising indivisible acts. Whether a course of criminal conduct is divisible depends on the intent and objective of the actor. If all the offenses are incidental to or are the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore may be punished only once. (See People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208; Neal v. State of California (1960) 55 Cal.2d 11, 19.) But if the “defendant harbored ‘multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.’” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.) Whether section 654 applies is a question of fact for the trial court, and we must uphold the court’s determination if supported by substantial evidence. (People v. Kurtenback (2012) 204 Cal.App.4th 1264, 1289.)
We accept the Attorney General’s concession section 654 barred separate punishment for domestic battery (count 1) and criminal threats (count 3). These offenses formed part of an indivisible course of conduct along with the kidnapping, and Tolento did not harbor multiple or simultaneous independent objectives. The criminal threat occurred when Tolento approached E.E. in a car, pulled out a knife, and told her he would stab her if she did not get in the car. The domestic battery occurred when he tried to get her to comply by pulling on the diaper bag on her shoulder, leaving marks. The acts were incident to one objective of facilitating the ultimate objective of kidnapping E.E.
Substantial evidence supports an implied finding the convictions for violating a protective order (counts 7 and 10) were divisible from the kidnapping. The crimes occurred one and two days after the kidnapping. The temporal separation gave Tolento time to reflect and renew his intent before committing the later crimes. (People v. Gaio (2000) 81 Cal.App.4th 919, 935; People v. Kwok (1998) 63 Cal.App.4th 1236, 1255.)

III
DISPOSITION
The judgment is modified (§ 1260) to stay the four-year concurrent midterm for domestic battery (§ 273.5, subds. (a) and (f)(1) [count 1]) and the two-year concurrent midterm for criminal threats (§ 422 [count 3]). The trial court shall prepare an amended abstract of judgment and forward it the Department of Corrections and Rehabilitation.



ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.