NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
RACHEL NICKOLE JAMES,
Defendant and Appellant.
|
F074542
(Super. Ct. No. SCR015753)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted defendant Rachel Nickole James of assault with a deadly weapon (Pen. Code,[1] § 245, subd. (a)(1); count 1), making criminal threats (§ 422; count 2), and petty theft (§ 488; count 4), and the trial court found true the special allegation, as to counts 1 and 2, that defendant had served a prior prison term (§ 667.5, subd. (b)). On appeal, defendant contends the court violated section 654’s proscription against multiple punishment when it sentenced her to consecutive terms for counts 1 and 2. We find merit to this contention and modify the judgment accordingly.
FACTS
On December 7, 2015, around 9:00 p.m., Jane Doe went to a Chevron gas station in Coarsegold to buy some milk. After walking back to her car, Doe observed defendant taking items out of the back of a parked truck and putting the items in a little pile in a dirt parking lot near the Chevron.
Doe returned to the Chevron store and asked the pickup truck’s owner, Jarret Holmes, if he knew defendant. When Holmes said no, Doe advised him that defendant was taking things out of the back of his truck. Holmes left the store to see what was going on and found some of his tools, including his small sledgehammer, were missing from the back of his truck.
After talking to Holmes, Doe returned to her car and got inside. Doe had put on her seatbelt and started her car, when she noticed defendant walking towards the car, holding something behind her back. Defendant tapped on Doe’s window and said, “Excuse me, excuse me.” Defendant then asked, “Were you talking to me?” After Doe said no, defendant asked, “Well, were you talking about me?” Doe responded, “Well, you just took that stuff out of that guy’s truck.”
Defendant’s voice, which until that point had been pleasant and polite, instantly turned very deep and angry as she said to Doe, “Bitch, I will kill you.” Defendant then pulled Holmes’s missing sledgehammer from behind her back, took a step backwards, and swung the sledgehammer at Doe’s window. Doe leaned over to the passenger seat and shielded her face with her arm. Although the glass did not shatter as Doe had feared, the sledgehammer left a deep gouge where it struck her window.
After striking Doe’s window with the sledgehammer, defendant walked back to Holmes’s truck and placed the sledgehammer down next to the truck. Defendant then crossed the road in front of the gas station. Meanwhile, a visibly frightened Doe called 911. Holmes and another Chevron customer remained with Doe following the attack until the police arrived, which helped ease Doe’s fears of defendant.
On October 3, 2016, the trial court sentenced defendant to an aggregate prison term of five years eight months as follows: four years for her assault with a deadly weapon conviction, plus one year for the section 667.5, subdivision (b) enhancement, and an eight-month consecutive term for her criminal threats conviction in count 2. The court imposed 180 days of local time with credit for time served on the petty theft conviction.
DISCUSSION
Defendant contends the trial court violated section 654’s proscription against multiple punishment because her assault on Doe with a sledgehammer and the threat underlying her conviction for making criminal threats “occurred in an instant as part of a single act” with the singular objective “to scare Doe.” We agree with defendant that section 654 required the court to stay the term it imposed on her criminal threats conviction.
“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).)
Whether a defendant’s multiple crimes involved multiple objectives generally is a question of fact for the sentencing court. (People v. Coleman (1989) 48 Cal.3d 112, 162.) Where the trial court makes no express findings on the issue, its imposition of separate sentence terms may constitute an implied finding that the offenses were divisible. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.) “A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.” (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
While defendant did not object below, “the waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.” (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3.)
The trial court implicitly found that defendant had separate objectives when she threatened to kill Doe and assaulted her with the sledgehammer. However, defendant’s criminal threat and assault on Doe occurred almost simultaneously. After defendant threatened to kill Doe, she immediately pulled out and swung the sledgehammer at Doe’s window.[2] After striking Doe’s window, defendant walked back to Holmes’s truck, set the sledgehammer down next to it, and walked across the street. The evidence thus indicates defendant committed both acts—threatening to kill Doe and striking Doe’s window with the sledgehammer—with the singular objective of frightening Doe. Accordingly, we agree with defendant that the consecutive term the trial court imposed on her criminal threats conviction violated section 654’s proscription against multiple punishment.
DISPOSITION
The judgment is modified to stay the consecutive eight-month term imposed on defendant’s conviction in count 2 for making criminal threats. The trial court is directed to prepare an amended abstract of judgment that incorporates this modification and to forward a certified copy to the appropriate authorities. As modified, the judgment is affirmed.
* Before Smith, Acting P.J., Meehan, J. and Black, J.†
† Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] All further statutory references are to the Penal Code.
[2] In imposing consecutive counts for counts 1 and 2, the trial court appears to have relied on a mistaken belief that defendant assaulted Doe by striking her window with the sledgehammer before she threatened to kill Doe. In this regard, the court stated: “Further, the consecutive sentences are warranted as she committed two separate and distinct acts of criminality, one being the assault on the victim, then after the assault, informing the victim that she was going to kill the victim.” This incorrect sequence of events was also described in the probation officer’s report, which stated: “Furthermore, consecutive sentences are warranted as she committed two separate and distinct acts of criminality, one in which she assaulted the victim, then, after said assault, she informed the victim that she was going to kill her.”
