Filed 2/28/14 P. v. Parsons CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A137501
v.
BRIAN CHARLES PARSONS,                                                   (Contra Costa County
                                                                          Super. Ct. No. 5-100801-0)
         Defendant and Appellant.


         Defendant Brian Charles Parsons was charged in an information with multiple
counts and related sentence enhancements arising from several incidents including his
attempt to steal two vehicles and his successful theft of a third vehicle. Before trial,
defendant pleaded no contest to resisting arrest (Pen. Code, § 691) (counts seven, eight,
eleven, and twelve) and misdemeanor battery (§§ 242, 243, subd. (a)) (count ten). After a
jury trial, defendant was convicted of mayhem (§ 203) (count one – victim Shannon
Biggs); carjacking (§ 215, subd. (a)) (count two -victim Shannon Biggs) with a related
great-bodily-injury enhancement (§ 12022.7, subd. (a)); carjacking (§ 215, subd. (a))
(count three-victim Brian Liang); assault with a deadly weapon (car) (§ 245, subd. (a)(1))
(count four- victim Shannon Biggs) with a related great-bodily-injury enhancement
(§§ 12022.7, subd. (a)); assault with a deadly weapon (car) (§ 245, subd. (a)(1)) (count
five-victim Brian Liang); second-degree vehicle burglary (§§ 459, 460, subd. (b)) (count
six – victim John Jones); and attempt to unlawfully drive or take a vehicle (§ 664; Veh.


1
         All further unspecified statutory references are to the Penal Code.


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Code, § 10851, subd. (a)) (count nine –victim Joshua Schultz). The jurors reported a
deadlock resulting in a mistrial relating to great-bodily-injury enhancements as to counts
three and five. At a bench trial, the court found true allegations that defendant had
sustained a prior strike conviction and was not eligible for probation having been on
parole for a felony conviction at the time of the current offenses and having sustained two
prior felony convictions (§§ 667, subds. (a)(1), (b) – (i), 1170.12, 1203, subd. (e)(4),
1203.085, subd. (b)).
       The trial court sentenced defendant to an aggregate term of 26 years, consisting of
consecutive terms of 13 years for count two, three years and four months for count three,
one year and four months for count six, one year and four months for count seven, one
year and four months for count eleven, eight months for count nine, and five years for the
prior strike conviction enhancement. The court also imposed concurrent terms of four
years for count one, three years for count four, three years for count five, two years for
count eight, two years for count twelve, and 90 days in county jail with credit for time
served for count ten. The court imposed but stayed a sentence of four years on the related
great-bodily-injury enhancement for count four.
       On appeal defendant’s sole argument is that the trial court erred by failing to stay
the sentences imposed on the mayhem (count one) and the assault (counts four and five)
convictions, pursuant to section 654. We conclude defendant’s contention is without
merit, and accordingly, we affirm.
                                          FACTS2
       At the jury trial held in October 2012, Shannon Biggs testified that on
September 5, 2009, she and her husband Brian Liang, landed at an airport having flown
there in their privately-owned plane. Once on the ground, Liang and Biggs were given
one of the airfield’s crew cars, a Toyota Camry, to use during their stay in the area.
Liang loaded luggage into the car and parked it in the airfield’s parking lot while Biggs
took care of the plane on the airstrip. Liang then walked and met Biggs on the airstrip
2
       We set forth only those facts necessary to resolve the sentencing issue raised on
this appeal.


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and they both walked back to the car in the parking lot. Biggs went to the passenger side
of the car, retrieved some tip money for the crew, and walked back through the parking
lot toward the airstrip, leaving Liang at the car in the parking lot. Without warning,
Biggs heard her husband cry out. She turned and saw defendant holding Liang in “a
fireman’s hold.” Defendant dragged Liang away from the car and threw him to the
ground in the parking lot. When Liang attempted to get up, defendant lifted Liang over
defendant’s head and threw him to the ground again. Liang landed on his shoulder and
his wrists.
       Biggs ran toward the Camry and when she arrived defendant was fully in the
driver’s seat. Both doors on the driver’s side of the Camry were open. Biggs scratched
at defendant’s face and tried to grab his genitals but defendant had no reaction. While
Biggs was standing within inches of defendant, he put the car into reverse and “floored
it.” As the car moved in reverse, the open car door struck Biggs with such force that she
flew into the air about 10 feet and landed on her back on the ground. Biggs thought the
car continued to back up and pass over her. Defendant continued to back up the car and
stopped about 11 feet away from Biggs. After 30 or 40 seconds Biggs pushed up onto
her hands and knees. She then heard the car engine rev up and saw the driver and car
aimed at both herself and Liang who was lying on the ground nearby. As defendant
stepped on the gas, Biggs rolled to her left to avoid the car. The car sped between Biggs
and Liang; Biggs did not see the car swerve as it drove between her and Liang. Biggs
was not sure if the car actually hit her or Liang at that time.
       Michael Kirk, a pilot, testified that while he was inside the airfield office, he heard
a woman screaming in the parking lot. He ran to the parking lot and “[i]nitially . . . saw
the rear of the car as it backed over these two people. Then as it pulled out, I was looking
at the hood of the car, he spun out and came forward directly at – directly towards me.
So initially my vantage point was the rear of the vehicle. After it struck the two
individuals, the vehicle was coming towards me.” Kirk saw “the female standing and
saw the vehicle strike her, roll over the top and then drive forward back over her again.”
“It was a real rapid event. I vividly remember the rear of the vehicle coming up elevating


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its tires off the ground and when I looked, I watched [the female] fall, the rear of the
vehicle come up and then land back on the ground.” Kirk’s attention was directed at the
female “because she got squarely struck by the vehicle. . . .” The female “was near the
trunk and the vehicle, once it went into reverse, struck her and knocked her down.”
“Because [the female] was in the direct path of the tires . . . the vehicle bumped over
her.” Kirk was 100 percent positive the car’s tires went over the woman’s body and, to
the best of his recollection, at the woman’s midsection.
       Liang and Biggs sustained severe injuries as a consequence of their encounter with
defendant. Liang suffered a head wound requiring stitches and his hands were placed in
splints. He wore braces on his arms for three months after the incident. At the time of
trial Liang had not gotten back the flexibility in his left wrist. Biggs sustained a severe
injury to her foot requiring stitches and her hip was stapled. She also had bruising around
her right eye that lasted for about a month. At the time of trial Biggs’s vision in her right
eye was “useless for ordinary sight,” and she retained only peripheral vision.
       The jury convicted defendant of mayhem (count one – Biggs), carjacking with a
related great-bodily-injury enhancement (count two – Biggs), carjacking (count three –
Liang), assault with a deadly weapon or by force likely to cause great bodily injury with a
related great-bodily-injury enhancement (count four –Biggs) and assault with a deadly
weapon or by force likely to cause great bodily injury (count five – Liang).
       At sentencing, the trial court chose the carjacking conviction with the related
great-bodily-injury enhancement (count two – Biggs) as the principal term and imposed a
sentence of 13 years on that conviction and a subordinate consecutive term of three years
and four months on the second carjacking conviction (count three – Liang). The court
also imposed subordinate concurrent terms on the convictions for mayhem (count one –
victim Biggs) and assault with a deadly weapon or by force likely to cause great bodily
injury (count four- victim Biggs and count five – victim Liang), and imposed but stayed
sentence on the great-bodily-injury enhancement related to count four.
       In explaining its decisions, the court stated, in pertinent part: “[¶] . . . [T]he
principal term will be for Count Two, the carjacking offense where Shannon Biggs was


                                               4
the victim. [¶] . . . I’m going to . . . choose the middle term of five years. That term will
be doubled by the strike, thus, meaning the principal term, Count Two, is ten years. [¶]
Added to that will be a term of three years consecutive under Penal Code section
12022.7, . . . referred to earlier as the great bodily injury enhancement of Shannon Biggs.
. . . I find it somewhat troubling that such a low term is the only term available
considering the catastrophic nature of the injuries. [¶] Next is Count One which is the
mayhem conviction. Now, the way in which the District Attorney’s Office has filed the
pleadings in his matter, they have essentially alleged five counts for a period of behavior
that literally took perhaps less than a minute in the parking lot of the aviation business
. . . . Now, considering that I have imposed the term for the great bodily injury
enhancement to Shannon Biggs, it is this Court’s judgment that while a consecutive term
is available to the Court, I do not believe it is barred by Penal Code section 654. I am
choosing to not impose a consecutive term but instead impose a four-year term
concurrent. [¶] . . . [¶] Next is Count Three which is the carjacking conviction involving
Brian [Liang] [¶] . . . [¶] . . . I believe that is a separate victim and the assaultive-type
behavior that took place which resulted in the vehicle being taken was a separate act from
what occurred with regard to Ms. Biggs and I believe a consecutive term is appropriate
and so for that count, I will impose one-third of the middle term [of] . . . five years, I will
then double that term by use of the strike conviction and so the additional consecutive
term for Count Three is three years, four months.” In explaining its reasons for imposing
concurrent terms of three years on the assault convictions (counts four and five), the court
stated: “[¶] . . . “[W]ith regard to Count Four. I believe that the behavior in Count Four
was directly related to the Defendant’s goal of taking the motor vehicle and while it
might have been a separate crime from the carjacking, I believe the Defendant’s primary
goal was the same and so while the People have requested that this Court impose a
consecutive term for Count Four, I am going to reject that proposal and instead impose a
three-year concurrent term which is the midterm. [¶] For Count Five, that is the
conviction for Penal Code section 245 for Brian Liang as the victim. And, again, I
already imposed a consecutive term for the carjacking of Brian Liang. I believe, again,


                                                5
that the Defendant’s primary goal when assaulting Mr. Liang, his primary goal, while it
was a separate crime, was the taking of the motor vehicle and the People have requested a
consecutive term . . . [but] I’m going to reject that proposal and instead impose the
midterm of three years concurrently.”
                                        DISCUSSION
       Defendant argues the trial court erred in imposing concurrent terms on the
mayhem (count one) and assault (counts four and five) convictions, and asks us to stay
the punishment pursuant to section 654. Although the trial court did not expressly so
rule, its imposition of concurrent terms on the mayhem and assault convictions was an
implicit finding that section 654 did not bar separate punishments on those convictions.
(People v. Garcia (2008) 167 Cal.App.4th 1550, 1565 [“implicit in the trial court’s
concurrent sentencing order is that defendant entertained separate intentions”].)
“[A]lthough there appears to be little practical difference between imposing concurrent
sentences, as the trial court did, and staying sentence on [three] of the convictions, as
defendant urges, the law is settled that the sentences must be stayed to the extent that
section 654 prohibits multiple punishment.” (People v. Jones (2012) 54 Cal.4th 350,
353.) Nevertheless, as we now discuss, we see no reason to disturb the trial court’s
imposition of concurrent sentences.
       Section 654, subdivision (a), reads, in pertinent part: “[A]n 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.” Because “few if
any crimes . . . are the result of a single physical act, . . . ‘[s]ection 654 has been applied
not only where there was but one “act” in the ordinary sense . . . but also where a course
of conduct violated more than one statute and the problem was whether it comprised a
divisible transaction which could be punished under more than one statute within the
meaning of section 654.’ ” (Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal),
disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331, 334.)
“Whether a course of criminal conduct is divisible and therefore gives rise to more than


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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.” (Neal, supra, at p. 19.)
“Decisions since Neal have limited the [‘intent and objective’] rule’s application in
various ways. Some [courts] have narrowly interpreted the length of time the defendant
had a specific objective, and thereby found . . . [¶] . . . separate, although sometimes
simultaneous, objectives under the facts.” (People v. Latimer (1993) 5 Cal.4th 1203,
1211-1212.) Additionally, it has been held that if a defendant “ ‘harbored multiple
criminal objectives,’ which were independent of and not merely incidental to each other,
he may be punished for each statutory violation committed in pursuit of each objective,
‘even though the violations shared common acts or were parts of an otherwise indivisible
course of conduct.’ ” (People v. Harrison (1989) 48 Cal.3d 321, 335.) “The question
whether section 654 is factually applicable to a given series of offenses is for the trial
court, and the law gives the trial court broad latitude in making this determination. Its
findings on this question must be upheld on appeal if there is any substantial evidence to
support them.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
       Relying solely on isolated portions of Biggs’ testimony, defendant contends “[t]he
uncontested evidence clearly establishes that [his] sole objection was the theft of the crew
car,” his acts of mayhem and assault were not “gratuitous or committed for some other
independent purpose,” and he did not intend to harm either Biggs or Liang “independent
of achieving” his goal of stealing the car. However, “[w]hen a trial court’s factual
determination is attacked on the ground that there is no substantial evidence to sustain it,
the power of an appellate court begins and ends with the determination as to whether, on
the entire record, there is substantial evidence, contradicted or uncontradicted, which will
support the determination, and when two or more inferences can reasonably be deduced
from the facts, a reviewing court is without power to substitute its deductions for those of
the trial court. If such substantial evidence be found, it is of no consequence that the trial
court believing other evidence, or drawing other reasonable inferences, might have



                                              7
reached a contrary conclusion.” (Bowers v. Bernarnds (1984) 150 Cal.App.3d 870, 873-
874.)
        Defendant’s arguments are incorrectly premised on isolated portions of Biggs’
testimony. The trial court was free to reject those portions of Biggs’ testimony, “ ‘though
not directly contradicted, and combine the accepted portions with bits of testimony or
inferences from the testimony of other witnesses thus weaving a cloth of truth out of
selected available material.’ ” (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-
68.) By reconciling the testimony of Biggs and Kirk, the trial court could reasonably find
that once defendant was in full possession of the car he had an opportunity to reflect on
his conduct and abandon his criminal conduct but he failed to do so. Instead, he chose to
expose both Liang and Biggs to new risks of harm by the manner in which he
maneuvered the car to facilitate his escape from the parking lot. Thus, the trial court
could conclude separate punishments for carjacking, mayhem and assault were
commensurate with defendant’s culpability (Neal, supra, 55 Cal.2d at p. 20) because his
“means to achieve” the carjacking had “become so extreme they c[ould] no longer be
termed ‘incidental’ and must be considered to express a different and more sinister goal
than mere successful commission of the original crime” (People v. Nguyen (1988) 204
Cal.App.3d 181, 191 (Nguyen)). As the court explained in Nguyen, Section 654 “cannot,
and should not be stretched to cover gratuitous violence or other criminal facts far beyond
those reasonably necessary to accomplish the original offense. Once robbers have
neutralized any potential resistance by the victims, an assault or attempt to murder to
facilitate a safe escape, evade prosecution, or for no reason at all, may be found by the
trier of fact to have been done for an independent reason.” (Nguyen, supra, at p. 191; see
also People v. Trotter (1992) 7 Cal.App.4th 363, 368 [separate punishments upheld on
two assault convictions where defendant fired two shots a minute apart at the victim as
“each shot evinced a separate intent to do violence;” “[e]ach shot posed a separate and
distinct risk to [the victim]”]; In re Jesse F. (1982) 137 Cal.App.3d 164, 171 [even if “the
crime of robbery is not actually complete until the robber ‘has won his way to a place of



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temporary safety[,]’ . . . it cannot mean every act a robber commits before making his
getaway is incidental to the robbery”].)
       In sum, we conclude there is no reason to disturb the trial court’s imposition of
separate punishments for the mayhem and assault convictions. Defendant in effect asks
us to reweigh the evidence and the reasonable inferences that could be drawn therefrom
and substitute our judgment for that of the trier of fact. We decline to do so. Nothing in
the cases cited by defendant warrants a different result. 3
                                      DISPOSITION
       The judgments are affirmed.

                                                  _________________________
                                                  Jenkins, J.

We concur:


_________________________
McGuiness, P. J.

_________________________
Pollak, J.


3
        Whether section 654 prohibits multiple punishment is a “separate” decision from
the question of whether sentences should be concurrent or consecutive. (People v.
Deloza (1998) 18 Cal.4th 585, 594; see Cal. Rules of Court, rule 4.424 [“Before
determining whether to impose either concurrent or consecutive sentences on all counts
on which the defendant was convicted, the court must determine whether the proscription
in section 654 against multiple punishments for the same act or omission requires a stay
of execution of the sentence imposed on some of the counts.”].) In deciding whether to
impose concurrent or consecutive terms, the trial court here relied on proper criteria,
finding the crimes of carjacking, mayhem, and assault, which “occurred in perhaps less
than a minute,” and their objectives, were not “predominantly independent of each other”
(Cal. Rules of Court, rule 4.425(a)(1)), and were “committed so closely in time and place
as to indicate a single period of aberrant behavior” (Id., rule 4.425(a)(3)). However, the
trial court’s comments cannot be read as an implicit finding that section 654 barred
imposing separate punishments on the mayhem and assault convictions, as defendant
suggests.


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