Filed 8/31/15 P. v. Wright CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)


THE PEOPLE,                                                                                  C076482

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF133618)

         v.

DANIEL SIDNEY WRIGHT,

                   Defendant and Appellant.




         Defendant Daniel Sidney Wright was convicted by a jury of kidnapping, inflicting
corporal injury on a cohabitant, issuing criminal threats, false imprisonment by force or
violence, dissuasion of a witness by threat of force, stalking, burglary, and child
endangerment, all arising from the end of his relationship with his girlfriend, the victim.
On appeal he contends (1) his conviction for false imprisonment must be reversed
because it is a lesser included offense of kidnapping; (2) his punishment for dissuasion of
a witness should be stayed because it was part of an indivisible course of conduct for
which he is already being punished; and (3) the victim restitution order must be stricken
to the extent it is premised on a crime of which he was not convicted. We agree with
defendant and will modify the judgment accordingly.



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                  FACTUAL AND PROCEDURAL BACKGROUND
       A.     Prosecution Evidence
       Defendant and the victim, who dated and lived together for several months, took
the victim’s three-year-old son to the park on a late afternoon in August 2013. While
defendant was playing with the victim’s son, the victim noticed that defendant’s phone
indicated he had received a text message from a woman referencing sexual relations. The
victim asked defendant about the message, and he immediately charged at her, yelling
and swearing. Defendant pulled her up from where she was sitting, pushed her to the
ground, slammed her against a tree, put his hands around her throat, and punched her. A
stranger tried to intervene, distracting defendant. The victim took advantage of the
distraction to attempt to call 911 on her phone, but defendant grabbed the phone and
threw it. She grabbed her son and tried to run away, but she did not have her car keys
because she left her purse behind. As she was running away, defendant pulled up next to
her in her car, got out of the car, and tried to force her into the car by yelling at her and
dragging her by her hair. When he was unable to force her in, he pushed her aside,
grabbed her son, and put the child in the back seat. Defendant got into the driver’s seat,
and out of fear for her son, the victim got into the car as well.
       Once in the car, defendant continued to hit the victim. As they drove, the victim’s
son fell out of his seat. At the victim’s request, defendant stopped the car, but when the
victim attempted to enter the back seat to help her son, defendant drove off without her.
The victim ran after the car, and defendant allowed her to reenter. At one point,
defendant stopped at a fast food restaurant, took the child into the restaurant to eat, left
the victim in the car, and told her to wait there. She was afraid to leave her son with
defendant. When defendant and the child sat down to eat their food, the victim ran into
the restaurant to collect her child and to attempt to flee. Angry, defendant poured a cup
of liquid on her. She took her child and hid in the restaurant bathroom. Defendant
followed her into the bathroom, where he repeatedly hit her head against a metal paper

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towel dispenser. Defendant then took her son and they all went back to the car. Once
they got in the car, defendant decided to get gas. He stayed in the car with her son, and
forced the victim to pay for and pump the gas. The victim contemplated telling the
cashier what was happening but was afraid what defendant might do to her son if he
found out. Finally, they drove to the apartment they shared. While driving, defendant
continued to threaten to hit her and to “break” her face.
       Defendant entered the apartment first, bringing her son with him. The victim
followed them inside, where she asked him to let them go. Defendant became angry, and
forced the victim and her son to sit down on the couch. Each time her son would get up
and ask to go to his grandmother’s house, defendant would grab him and place him back
on the couch. Defendant would not even let her son use the bathroom, so he wet himself
on the couch. After that, defendant let the victim go upstairs for a change of clothes.
Defendant then tried to put her son in a room by himself, but the child escaped. They all
went back downstairs, where defendant continued hitting the victim. The victim told
defendant he should leave; he hurled a mug full of liquid at her. She ran out the front
door of the apartment, leaving her son behind, because she was afraid this was her last
chance, she could not take any more abuse, and she believed defendant would follow her.
He did. He also tried unsuccessfully to bring her back inside by pulling her hair. She
was able to find a neighbor, who called the police. In the meantime, her son had come
outside as well. Police arrived shortly thereafter and forced defendant to leave, but they
did not arrest him.
       That night, the victim and her sister received numerous calls from a blocked
telephone number (the victim had recovered and repaired the cell phone defendant had
thrown earlier). Defendant was the caller. He called the victim a snitch and threatened to
harm her. The victim went to stay at her mother’s house. She later learned that
defendant had been seen getting into or out of her car. The victim found a note defendant
had left on the passenger seat of the car, though she had locked the car the night before.

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The note indicated the victim had “snitch[ed]” on him and accused her of violating his
privacy by looking at his phone.
       At that point, the victim called the police and told them what had happened the
previous day. The police helped her obtain a restraining order. She continued to receive
calls from defendant. She answered once; he apologized; she told him to stay away from
her; he indicated he would kill himself rather than go to jail; she told him to leave her
alone; he grew angry, cussed at her, and said he should have killed himself, her, and her
son when he had the chance; she hung up the phone.
       The next day, she heard he had gone to her apartment. When she went to her
apartment, the door was open, so she called the police, after they checked that no one was
there, she noted that several items were missing and broken. When she went to her office
later that week, she found out defendant had entered her office using a pass code known
only to employees. Defendant called her from county jail and apologized.
       B.     Defense Evidence
       Defendant testified that they had gone to the park so the victim’s son could “burn
some energy.” He and the victim were sitting on a blanket together, when his phone
vibrated. He looked over at it, and saw the victim “going through it.” She “went
berserk,” accused him of cheating on her, refused to give him back his phone. As he was
gently trying to retrieve his phone, he heard someone yelling, “don’t hit that woman.” He
looked in the direction of the sound, saw someone videotaping them and approached the
person who yelled, but ultimately turned around and walked back towards the victim. He
did not see the victim, so he walked to where her car was parked, saw her nearby, told her
they should break up, and then they all (defendant, the victim, and her son) got in her car.
       The victim first suggested that they return to their apartment, but they instead
decided to get her son something to eat. The victim drove to one restaurant, where she
had an emotional breakdown while still in the car. Her son continued to complain he was
hungry, and when defendant urged her to take care of her son, she became upset and told

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defendant he would “pay for this.” Eventually they went to another restaurant, where
defendant went inside with the victim’s son to get food for the child. At first, the victim
did not want to come inside because she had been crying and her make-up had run, but
ultimately she came inside, carrying an open water bottle. She poured the water all over
the food, her son began crying, and she took her son into the bathroom. Defendant
waited for them outside the bathroom.
        They all got back in the car, drove to get gas, and then they returned to the
apartment so defendant could collect his things. Defendant put a movie on the television
for the victim’s son, and, about an hour later, while defendant was waiting for his friend
to come pick him up from the apartment, the victim came back downstairs and stated she
was leaving because defendant was still there. When she walked outside, her son started
screaming, and defendant told her to take her son. The victim demanded that defendant
leave, and, at that time, the police arrived.
        He called the victim once later that evening, in which he spoke to the victim and
her brother; he did not threaten either of them. He also denied putting the note in her car
or breaking into her apartment. He admitted entering her workplace using the pass code
she had given him earlier, though he contended it was to collect a folder of his.
        C.     Judgment and Sentencing
        A jury found defendant not guilty of injuring a wireless communication device
(Pen. Code, § 591.5; count 13)1; it deadlocked on the kidnapping of the victim’s son
(§§ 207, subd. (a), 208, subd. (b); count 3) and on residential burglary (§ 459; count 10);
it found defendant guilty of inflicting corporal injury on a cohabitant (§ 273.5, subd. (a);
counts 1 [at the park] & 4 [in the car]), kidnapping of the victim (§ 207, subd. (a); count
2), issuing criminal threats (§ 422; count 5), false imprisonment with force and violence




1   Undesignated statutory references are to the Penal Code.

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(§§ 236, 237, subd. (a); count 6), dissuading a witness by threat of force (§ 136.1, subd.
(c)(1); count 7), stalking (§ 646.9, subd. (a); count 8), burglary (§ 459; counts 9 [car] &
11 [workplace]), and misdemeanor child endangerment (§ 273a, subd. (b); count 12).
The trial court declared a mistrial as to counts 3 and 10, and dismissed those charges.
The trial court also found true the allegations that defendant had a prior serious and/or
violent felony conviction subjecting him to sentencing enhancements pursuant to section
667, subdivisions (a)(1), (c), and (e)(1).
       The trial court sentenced defendant to an aggregate term of 25 years 8 months in
state prison: 10 years (double the middle term) for kidnapping the victim (count 2), a
consecutive two years (double one-third of the middle term) for infliction of a corporal
injury (count 1), a consecutive six years (double the middle term) for dissuading a
witness (count 7), two consecutive 16-month terms (double one-third of the middle term)
for each second degree burglary (counts 9 & 11), a concurrent one year for the child
endangerment (count 12), and five years for the prior serious felony conviction. The trial
court imposed sentences but stayed execution for the corporal injury that occurred in the
car (count 4), criminal threats (count 5), false imprisonment (count 6), and stalking (count
8). Additionally, the trial court ordered defendant to pay restitution to the victim in the
amount of $1,200 and to the victim’s compensation fund in the amount of $2,853. The
trial court also imposed statutory fines and fees and a 10-year criminal protective order.
                                       DISCUSSION
                                              I
                                    False Imprisonment
       At trial the People argued there were two separate detentions resulting in two
distinct crimes: kidnapping based on defendant forcing the victim to get into the car by
using her son and false imprisonment based on defendant forcing the victim to remain in
the living room of the apartment through intimidation. On appeal, defendant contends
there was a single ongoing detention from the moment defendant forced the victim into

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the car until she later fled the apartment seeking help. The People argue defendant could
properly be convicted of both crimes because a reasonable jury could conclude the
kidnapping detention ended when the victim got home, before the false imprisonment
began. We conclude the false imprisonment conviction must be reversed because it is a
lesser included offense of kidnapping, and defendant cannot be convicted of both crimes
where, as here, the crimes are based on the same course of conduct.
       Section 207, subdivision (a) defines kidnapping as “forcibly, or by any other
means of instilling fear, steal[ing] or tak[ing], or hold[ing], detain[ing], or arrest[ing] any
person in this state, and carr[ying] the person into another country, state, or county, or
into another part of the same county. . . .” “ ‘[T]he forcible detention of a victim is an
element of kidnapping and as long as the detention continues, the crime continues.’ ”
(People v. Thomas (1994) 26 Cal.App.4th 1328, 1334.) False imprisonment is “the
unlawful violation of the personal liberty of another.” (§ 236.) It is also a lesser included
offense of kidnapping. (People v. Delacerda (2015) 236 Cal.App.4th 282, 289.) As
such, a defendant cannot be convicted of both based on the same act or course of conduct.
(People v. Sanders (2012) 55 Cal.4th 731, 736; People v. Chacon (1995) 37 Cal.App.4th
52, 65; People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121.)
       Here, the People argue that because the victim followed defendant into the
apartment, she entered freely, voluntarily, and by her consent the kidnapping had ended
at that point so the false imprisonment is based on separate acts. The People’s attempt to
narrowly parse the ongoing course of conduct that comprised the kidnapping into two
separate detentions is not well taken. “[T]he crime of kidnapping continues until such
time as the kidnapper releases or otherwise disposes of the victim and has reached a place
of temporary safety . . . .” (People v. Barnett (1998) 17 Cal.4th 1044, 1159.) Here, just
as the victim’s decision to initially enter the car at the park was not freely or voluntarily
made because defendant had her son, her decision to follow defendant into the apartment
after defendant “grabbed” her son and took him inside is not consensual either. Thus, the

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kidnapping was still ongoing when the victim entered the apartment and was falsely
imprisoned by defendant. Therefore, both crimes are based on the same conduct, and the
conviction for the lesser included offense of false imprisonment must be reversed.
                                              II
                                 Dissuasion of a Witness
       The trial court initially indicated an intention to stay execution of any sentence for
defendant’s witness dissuasion conviction (count 7) based on the application of section
654. However, based on the People’s representation that section 1170.15 precluded the
application of section 654 and required imposition of a consecutive full term, the trial
court imposed a six-year consecutive sentence for witness dissuasion. Defendant
contends that because the trial court found the dissuasion of the witness and the
kidnapping arose from the same course of conduct motivated by the same intent,
punishment for dissuasion should be stayed pursuant to section 654. We agree.
       Section 1170.15 declares, “Notwithstanding subdivision (a) of Section 1170.1
which provides for the imposition of a subordinate term for a consecutive offense of one-
third of the middle term of imprisonment, if a person is convicted of a felony, and of an
additional felony that is a violation of Section 136.1 . . . that was committed against the
victim . . . , the subordinate term for each consecutive offense that is a felony described in
this section shall consist of the full middle term of imprisonment for the felony for which
a consecutive term of imprisonment is imposed . . . .” Thus, this statute authorizes a
court to impose a full consecutive middle term when imposing a subordinate sentence for
dissuading a witness.
       However, section 654, subdivision (a) applies regardless of whether a court
imposes a concurrent or a consecutive sentence for a separate offense arising from an
indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 594
[“Section 654 does not allow any multiple punishment, whether concurrent or
consecutive”].) “[A] statute may prevent or negate the operation of section 654 even in

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the absence of an express reference to that provision,” but the statutes that have done so
have involved use of the phrase “notwithstanding any other law” or similar language.
(People v. Duff (2010) 50 Cal.4th 787, 798; see People v. Palacios (2007) 41 Cal.4th
720, 730; People v. Benson (1998) 18 Cal.4th 24, 32.) As opposed to those statutes, the
“[n]otwithstanding” language of section 1170.15 is limited to negating the one-third the
middle term provision of section 1170.1, subdivision (a). It is not so broad as to preclude
the application of section 654, subdivision (a). Thus, we conclude section 654,
subdivision (a) applies to defendant’s conviction for witness dissuasion and the trial court
erred in failing to stay the sentence on this count.
       And, since it is clear the trial court would have stayed sentencing for dissuasion of
a witness were it not for the argument of the People, there is no need to remand this
matter for resentencing. (See People v. Coelho (2001) 89 Cal.App.4th 861, 889.) Rather,
we modify the judgment to stay the sentence imposed by the trial court for count 7.
                                              III
                                         Restitution
       Defendant contends that because he was not convicted of residential burglary, the
victim’s restitution award of $1,200 stemming from the burglary of her residence should
be stricken. The People properly concede the error. A victim is entitled to recover
restitution to recompense economic losses caused by the commission of a crime from a
person convicted of that crime. (People v. Woods (2008) 161 Cal.App.4th 1045, 1049.)
But, here defendant was not convicted of residential burglary; the jury deadlocked on that
count and it was ultimately dismissed. Therefore, the restitution award premised on
losses the victim suffered in the burglary of her residence must be stricken. (Id. at
pp. 1049-1054; People v. Lai (2006) 138 Cal.App.4th 1227, 1251.)




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                                             IV
                                  Abstract of Judgment
       The People note that the abstract of judgment contains an error requiring
correction. The abstract of judgment indicates the trial court imposed and stayed a term
of five years pursuant to section 667, subdivision (a)(1). However, the trial court did not
indicate this punishment was to be stayed in its oral pronouncement of judgment at the
sentencing hearing. Therefore, we will order the trial court to correct the abstract of
judgment to eliminate the reference to this punishment being stayed. (See People v.
Mitchell (2001) 26 Cal.4th 181, 187-188.)
                                      DISPOSITION
       The judgment is modified to reverse defendant’s conviction for false
imprisonment (count 6), to stay sentencing for dissuasion of a witness (count 7) pursuant
to section 654, and to strike the $1,200 victim restitution award. As modified, the
judgment is affirmed. The trial court is directed to prepare an amended and corrected
abstract of judgment consistent with this opinion, and to forward a certified copy of the
abstract to the Department of Corrections and Rehabilitation.



                                             BLEASE                    , Acting P. J.


We concur:


         MAURO                     , J.


         RENNER                    , J.




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