Filed 11/17/17 P. v. Nguyen CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

UT VAN NGUYEN,

Defendant and Appellant.
D072023



(Super. Ct. No. SCS288501)


APPEAL from a judgment of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed as modified.
Avatar Legal and Cynthia M. Jones, 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, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
In August 2016, while intoxicated on methamphetamine, Ut Van Nguyen tackled 72-year-old Carlos V. from behind, knocking Carlos to the ground and then falling on top of him. A jury convicted Nguyen of elder abuse in circumstances likely to produce great bodily injury (Pen. Code, § 368, subd. (b)(1), count 1) and simple assault. (§ 240, count 3.) Nguyen received a three-year prison term for the elder abuse conviction. The court also imposed 180 days in custody for the assault conviction. The parties did not object to the sentence. Nguyen argues, and the Attorney General concedes, that the trial court should have stayed his sentence on the assault count under section 654 because it was based on the same conduct as his conviction for elder abuse. We agree.
DISCUSSION
Section 654 generally prohibits the imposition of multiple punishments for offenses arising out of a single act or indivisible course of conduct. (§ 654, subd. (a); People v. Hester (2000) 22 Cal.4th 290, 294 (Hester).) " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) "When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective." (People v. Islas (2012) 210 Cal.App.4th 116, 129.) Such findings will be upheld on appeal if supported by substantial evidence. (Ibid.) "[A] court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654." (Hester, at p. 295.)
Assault is defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Physical elder abuse is defined as including any act which, "under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain . . . ." (§ 368, subd. (b)(1).) Although the jury convicted Nguyen of both elder abuse and simple assault, the trial court made no express findings with regard to Nguyen's intentions or objectives. To the extent the court impliedly found that section 654 did not apply, the record does not contain substantial evidence supporting this conclusion. We agree with the parties that counts 1 and 3 are based on the same physical act. While Nguyen's behavior violated more than one statute, the record does not support a finding that he harbored separate objectives for each offense. Accordingly, Nguyen's sentence for simple assault must be stayed under section 654.
DISPOSITION
The judgment is modified to stay, pursuant to section 654, the 180-day sentence imposed for simple assault (count 3). As modified, the judgment is affirmed. The trial


court is directed to prepare an amended abstract of judgment reflecting this modification and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.



NARES, J.

WE CONCUR:



BENKE, Acting P. J.



IRION, J.