Filed 7/11/14 In re Nicolas P. CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re NICHOLAS P., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
                                                                                           F068400
         Plaintiff and Respondent,
                                                                         (Super. Ct. No. 13CEJ600723-1A)
                   v.

NICHOLAS P.,                                                                             OPINION
         Defendant and Appellant.
                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. James A.
Kelley, Judge.
         Kristen Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, 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-




*        Before Cornell, Acting P.J., Gomes, J. and Kane, J.
       The juvenile court found that appellant Nicholas P. was a person described in
Welfare and Institutions Code section 602 after it sustained allegations charging appellant
with assault by means likely to produce great bodily injury (Pen. Code, § 245, subd.
(a)(4)),1 corporal injury to a spouse/cohabitant (§ 273.5, subd. (a)) and false
imprisonment by violence (§ 236). On November 13, 2013, the juvenile court set
appellant’s maximum term of confinement at five years eight months and committed
appellant to the New Horizons program for a term not to exceed one year.
       On appeal, appellant contends the juvenile court violated section 654 when it used
his adjudications for corporal injury and false imprisonment to add consecutive terms of
one year and eight months to his maximum term of confinement. We affirm.
                        FACTUAL AND PROCEDURAL SUMMARY
       In September 2013, appellant’s then 18-year-old ex-girlfriend, K.F., was
temporarily living with appellant and his mother in his mother’s Fresno residence. On
the morning of September 9, 2013, at approximately 1:30 a.m., K.F. returned to the
residence after attending a party at her family’s house. She apologized to appellant for
being late. He had an angry look on his face and asked her why she did not call him and
why she was out so late. He told her in an angry voice to “get to the back room,”
referring to his bedroom. Appellant’s mother was the only other person in the house and
she was in her bedroom sleeping.
       K.F. went to the back room and began packing her belongings because appellant
had told her she had to leave the next day because he was leaving for foster care. As K.F.
was putting her things in a pile, appellant entered the room and asked her where she
thought she was going. She explained that his mother would not let her stay there unless
she got food stamps and she was unable to get food stamps. Appellant told her she was




1      Unless otherwise indicated, all further statutory references are to the Penal Code.


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worthless and began throwing her belongings around the room. He told her she was not
going to leave him and became increasingly angry.
           At some point, appellant backhanded K.F. across the left side of her face, causing
a black and blue bruise. This caused K.F. severe pain and she began to cry. Appellant
then began striking K.F. in the face and on the legs with his closed fist, while pushing her
down on his bed. Meanwhile, K.F. shouted at him to stop and banged on the wall in an
attempt to wake his mother and get help. Appellant realized what she was doing and told
her “don’t f***ing wake up my mom or you don’t know what the f*** I’m [going to]
f***ing do to you.” K.F. was dazed and did not want any more violence so she stopped
talking.
       Appellant left the room to see if his mother was awake. K.F. was afraid he was
going to get a weapon so she found a pair of “little kid scissors” with sharp points in her
purse and put them in the waist of her shorts. Appellant returned with a knife that he put
to his throat and said he no longer wanted to live because he hit a girl. She told him to
put the knife down so he put it in his pocket and began yelling at her again. He then
grabbed her, threw her on the bed, and began pushing and punching her, causing the
scissors in her waistband to move around and scratch her legs.
       Appellant put his hands around K.F.’s neck and choked her for “a second” and put
the scissors to her face while asking her what she was trying to do. He said, “You’re
trying to hurt yourself. Let me help.” Then he told her he would get her while she was
sleeping. He said, “I’ll suffocate or stab your ass when you’re sleeping.” He grabbed a
pillow and put it over her face but it did not interfere with her breathing. She pushed the
pillow away and he told her he would just wait until she was asleep.
       Appellant backed away from K.F. and told her to pick up her things. As she was
putting things into her purse, appellant grabbed her bottle of prescription Vicodin and
started taking the pills. K.F. slapped the bottle out of his hand and grabbed the pills out
of his mouth.


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       Appellant announced he was going to sleep in the living room so that K.F. could
not leave. She remained in his room and appellant sat in a chair in the living room and
stayed awake. K.F. eventually fell asleep but awoke an hour or two later to see if she
could leave but appellant was still awake in the living room. She saw him coming back
to the room and she pretended to be asleep. Appellant lay down next to her and told her
he was sorry for hitting her. He said he was angry because he had to go to foster care the
next morning. He wanted her forgiveness and wished God would take him for what he
did and he wished he could kill himself.
       Appellant woke K.F. up around 9:30 a.m. and told her she needed to leave for 30
minutes because someone from child protective services was coming. He told her she
should go hang out with one of their friends and return but she walked home instead.
       K.F. was treated for her injuries at a hospital where she was provided a neck brace
because she could not hold her head up. She had black and blue bruises around her eye,
as well as a severe headache, dizziness and fainting spells. She also had bruises on her
stomach, back and leg.
       On September 19, 2013, the Fresno County District Attorney filed a wardship
petition in juvenile court alleging appellant fell within the provisions of Welfare and
Institutions Code section 602 by reason of his commission of the following offenses:
count I-assault with a deadly weapon (§ 245, subd. (a)(1)); count II-assault by means of
force likely to produce great bodily injury (§ 245, subd. (a)(4)); count III-infliction of
corporal injury resulting in a traumatic condition upon a spouse or cohabitant (§ 273.5,
subd. (a)); and count IV-false imprisonment by violence (§ 236).
       In October 2013, at the jurisdictional hearing, the juvenile court found counts II,
III and IV true beyond a reasonable doubt and declared them to be felonies. The court
found there was insufficient evidence to support a true finding as to count I and
discharged appellant as to that count.




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       In November 2013, at the dispositional hearing, the juvenile court set appellant’s
maximum term of confinement at five years and eight months, consisting of four years
for the assault, a consecutive one-year term for corporal injury (one-third the middle term
of three years) and an eight-month term for false imprisonment (one-third the middle
term of two years). In so ruling, the court stated, “Separate sentences are appropriate …
[because] the crimes involve separate acts of violence or threats of violence.”
       This appeal ensued.
                                      DISCUSSION
       Appellant contends the assault, corporal injury and false imprisonment
adjudications stem from one course of conduct. For that reason, he argues, the juvenile
court violated section 654 by imposing separate terms for each offense. We disagree.
       Section 654 provides in part: “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).) The purpose of section 654
is to ensure a defendant’s punishment is commensurate with his or her culpability.
(People v. Oates (2004) 32 Cal.4th 1048, 1063.) A course of conduct that constitutes an
indivisible transaction violating more than a single statute cannot be subjected to multiple
punishment. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.) “If all 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. Perez (1979) 23 Cal.3d 545, 551.) The
sentences on the remaining counts must be stayed. (People v. Deloza (1998) 18 Cal.4th
585, 591-592.)
       If, on the other hand, “[the defendant] entertained multiple criminal objectives
which were independent of and not merely incidental to each other, he may be punished
for independent violations committed in pursuit of each objective though the violations
shared common acts or were parts of an otherwise indivisible course of conduct.”


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(People v. Beamon (1973) 8 Cal.3d 625, 639.) The trial court’s determination that the
defendant had more than one objective is factual and will be upheld on appeal if
supported by substantial evidence. (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
       Additionally, even if the defendant harbors but one objective throughout the
commission of the crimes, if his conduct is “divisible in time,” it may be appropriate to
impose multiple punishments for the violations. (People v. Gaio (2000) 81 Cal.App.4th
919, 935.) “This is particularly so where the offenses are temporally separated in such a
way as to afford the defendant opportunity to reflect and to renew his or her intent before
committing the next one, thereby aggravating the violation of public security or policy
already undertaken.” (Id. at p. 935.)
       We conclude substantial evidence supports the juvenile court’s implied factual
finding that appellant had multiple independent objectives: he wanted to physically
assault K.F. and keep her from leaving his mother’s house. We further conclude the
assault was divisible in time, thus permitting appellant an opportunity to reflect before
proceeding.
       Appellant initiated the first assault when K.F. returned home from the party. He
was angry and struck her across the face. He continued by striking her in the face and
punching her in the legs while forcing her onto the bed. When she shouted, he stopped
and left the room to see if the noise woke his mother.
       While checking on his mother, appellant retrieved a knife before returning to K.F.
in his bedroom. In those moments, he had sufficient time to evaluate what he was doing
and stop. Instead, he entered the bedroom with a new intent and mounted the second
assault. He grabbed K.F., threw her on the bed, and pushed and punched her. He also
choked her, held the scissors near her face, and threatened her by offering to help her hurt
herself.
       After mounting two separate assaults against K.F., appellant announced his intent
to keep her from leaving by stationing himself in the living room between the bedroom


                                             6
and the front door and keeping watch over her. She testified she wanted to leave but had
to wait for him to fall asleep.
       Appellant contends the juvenile court erred in not staying the term on the false
imprisonment offense under section 654, relying on People v. Nubla (1999) 74
Cal.App.4th 719 (Nubla). However, Nubla provides no support for his contention
because the issue of whether a false imprisonment offense should be stayed under section
654 was not raised in that appeal.2
       Appellant further contends his conduct was not divisible in time because he acted
“in the heat of the moment” in committing the offenses with “mere seconds, or minutes at
the most” between them. Appellant cites People v. Kwok (1998) 63 Cal.App.4th 1236
(Kwok) in order to distinguish it from the facts here. However, Kwok is so factually
distinct as to be irrelevant. The “course of conduct” at issue under section 654 in Kwok
involved two burglaries that occurred nine days apart.3 Here, appellant committed the




2       In Nubla, appellant pushed his wife onto the bed facedown, pressed a gun to her
head, then turned her over and put the gun in her mouth. (Nubla, supra, 74 Cal.App.4th
at p. 723.) Appellant was found guilty of assault with a deadly weapon, corporal injury
on a spouse, and false imprisonment. (Ibid.) The trial court imposed separate sentences
on the first two offenses and stayed sentencing on the false imprisonment offense under
section 654. (Id. at p. 724.) On appeal, appellant challenged the imposition of separate
sentences on the assault with a deadly weapon and corporal injury to a spouse offenses,
claiming they were part of an indivisible course of conduct and thus subject to the
limitations of section 654.
3       Kwok involved a burglary of a woman’s apartment and then another burglary of
the apartment and assault of the woman separated by nine days. (Kwok, supra, 63
Cal.App.4th at pp. 1256-1257.) On appeal, the defendant argued, inter alia, that
imposition of a consecutive sentence for the first burglary was precluded by section 654
because it was part of a “course of conduct.” The court disagreed. While finding that the
defendant’s entries in the victim’s residence could be said to constitute a “‘course of
conduct’ in a broad sense because the first entry was intended at least in part to facilitate
the crimes committed nine days later,” it found the entries were clearly a “‘course of
conduct divisible in time,’ consisting of separate offenses which may therefore be
separately punished.” (Kwok, supra, at p. 1256.)

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offenses over approximately eight hours, making his case more factually akin to People
v. Trotter (1992) 7 Cal.App.4th 363 (Trotter).
       In Trotter, the defendant stole a taxi and fired three shots at a police officer during
a chase on the freeway. The defendant fired the second shot about a minute after the first
shot and the third shot seconds later. (Trotter, supra, 7 Cal.App.4th at pp. 365-366.) He
was convicted of vehicle theft, evading a police officer, and three counts of assault with a
firearm, and he was sentenced separately on two of the assaults. (Id. at p. 365.) The
appellate court found no error, reasoning that the defendant’s conduct became more
egregious with each successive shot, that each shot required a separate trigger pull, and
that all three shots were separated by periods of time during which reflection was
possible. The court stated: “‘Defendant should ... not be rewarded where, instead of
taking advantage of an opportunity to walk away from the victim, he voluntarily resumed
his ... assaultive behavior.’ [Citation.]” (Id. at p. 368.) Moreover, “when [the] defendant
pauses and, having the option to land another blow or to break off the attack, chooses the
former course of action, his culpability increases and his intent, though the same in kind,
can be considered separate and distinct .…” (Id. at pp. 368-369, fn. 4.)
       As in Trotter, appellant had sufficient time to reflect and discontinue his assaultive
behavior toward K.F. and his confinement of her. Instead, he continued and it escalated.
Under the circumstances of this case, section 654 does not apply and the juvenile court
properly imposed a separate term for each count. We find no error.
                                      DISPOSITION
       The judgment is affirmed.




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