P. v. Neufeld

Filed 1/22/07  P. v. Neufeld CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Kern County.  Richard J. Oberholzer, Judge.

            Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

William Joseph Neufeld, appellant, challenges his aggregate four-year sentence for battery on a peace officer, resisting arrest and using force or violence against a peace officer.  He contends imposition of one of the terms violates Penal Code section 654.^[1]  We disagree and will affirm.

FACTS

            On March 30, 2005, appellant was being booked at Kern County Jail for unrelated charges.  He left the nurse's office and punched Officer Baeza in the face, breaking his glasses.  When Officer Meek attempted to restrain him, appellant struggled and hit Meek in the neck with his right fist.  Officer Venable tried to grab appellant's arm and appellant struck Venable in the head. 

Officers Venable, Whorf, Meek, and Castro forced appellant to the ground where he continued to struggle.  Appellant lay prone with his arms under his chest and refused to move his arms from beneath him.  Officer Castro restrained appellant's head while Officers Venable and Whorf pulled out appellant's hands and handcuffed him. 

After the incident, the right side of Officer Meek's neck was red.  Officer Venable's head felt tender, but he did not seek treatment or miss time from work.  Appellant did not hit Officer Castro during this encounter.  However, Officer Castro injured two fingers while restraining appellant, but did not see a doctor or miss work.  Officer Baeza suffered two small cuts at his left eyebrow for which he received medical treatment. 

PROCEDURAL HISTORY

            As pertinent to the issue on appeal, appellant was charged with: (1) battery on a peace officer with infliction of great bodily injury (§§  243, subd. (c)(2),  12022.7, count 3), (2) deterring or preventing an executive officer from performing his duties (§  69, counts 4, 5, 6), and (3) using force or violence against a peace officer (§  243, subd. (b), counts 7, 8, 9).

            The jury returned a verdict of guilty of misdemeanor battery on Officer Baeza under count 3 (§  243, subd. (b)), misdemeanor resisting arrest as to Officers Venable, Meek and Castro under counts 4, 5, 6 (§  148, subd. (a)(1)), and using force or violence against a peace officer as to Officers Venable and Meek under counts 7 and 8, but not guilty as to Officer Castro under count 9. 

Appellant was sentenced to four consecutive one-year terms for counts 3, 6, 7 and 8.  The sentencing court ordered these counts be served consecutively because the crimes involved separate victims.  The court stayed sentences for counts 4 and 5 as to Officers Venable and Meek pursuant to section 654, however, it did not stay the sentence in count 6 as to Officer Castro.  Appellant filed a timely notice of appeal. 

DISCUSSION

I.          Section 654 does not Require Appellant's Sentence for

Resisting Arrest from Officer Castro be Stayed.

            Appellant argues the term for count 6, resisting arrest as to Officer Castro, should have been stayed pursuant to section 654 because it was part of the same course of conduct as the battery and use of force against the other officers for which he was punished and because resisting arrest is not a crime of violence.    

Standard of Review

            Whether multiple convictions are part of an indivisible transaction, so as to invoke section 654, is a question of fact.  (People v. Martin (2005) 133 Cal.App.4th 776, 781.)  On appeal, the court reviews such a finding under the substantial evidence test and considers â€