Filed 10/26/15 P. v. Gregg 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                       (Siskiyou)
                                                            ----




THE PEOPLE,                                                                                  C077234

                   Plaintiff and Respondent,                                        (Super. Ct. No. 14-93)

         v.

TRAVIS JAMES GREGG,

                   Defendant and Appellant.




         A jury found defendant Travis James Gregg guilty of resisting a peace officer with
force or violence (Pen. Code, § 69; count 1)1 and exhibiting a deadly weapon with intent
to resist a peace officer (§ 417.8; count 2). Defendant was sentenced to an eight year four
month aggregate term. On appeal, defendant contends that sentence is unauthorized
because section 654 bars punishment for two convictions arising from the same act or




1   All undesignated section references are to the Penal Code.

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course of conduct. We agree and therefore modify the judgment by staying the sentence
on count 1.
                                     BACKGROUND
       An hour before midnight, Yreka Police Department and California Highway Patrol
officers arrived at defendant’s parents’ home, to arrest defendant for cutting off his ankle
monitor. Once the house was surrounded, police dispatch called the home to tell
defendant the home was surrounded; defendant responded that he was not going to give
up. Defendant then appeared in the kitchen window and yelled that he was not going to
be taken alive. He pointed to his temple saying: “Shoot me, shoot me right here.”
Defendant then ducked out of view.
       Several minutes later, he reappeared at the front door, from behind a closed metal
security screen door. He continued to make threats while officers tried to talk with him.
After several minutes, defendant opened the screen door, revealing what appeared to be a
steak knife in his hand. Holding the knife, he continued to threaten that he would not be
taken alive, that he would take one of the officers out, and make the officers shoot him.
At one point, defendant stuck his body further out the door screaming, “Just fucking
shoot me.” As he did, an officer attempted to shoot him with a Taser but missed.
Defendant went back inside, shutting the security screen door.
       The officers observed a scuffle in the kitchen, and shortly after defendant’s father
walked out the front door. An officer directed the father to get defendant’s mother and
grandfather out of the house. The father reentered the house.
       Defendant came to the door a second time and opened the screen door -- this time
holding a butter knife. Defendant’s mother also came to the door and tried
unsuccessfully to push defendant outside. Shortly after, the butter knife was tossed
outside, and defendant went back inside, shutting the door and security screen. Officers
heard screaming and arguing from inside the house. When defendant’s uncle came
outside, an officer ordered him to leave the security screen door fully open.

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       Defendant came to the door a third time, this time holding only a pack of
cigarettes. Seeing no weapons, the officers rushed him. As they forced the door open, an
officer fired his Taser through the doorway; defendant screamed and fell. The officers
got on top of defendant, and one deployed a Taser to the base of defendant’s neck,
through his jacket. The officers struggled to cuff defendant as he would not provide his
hands and was lifting up on his side. Defendant was “Tased” again, screamed, “I’m
done, I’m done,” and was taken into custody.
       From the time police arrived, until defendant was arrested, 1 hour 12 minutes had
elapsed. Defendant was convicted of resisting a peace officer with force or violence
(§ 69) and exhibiting a deadly weapon with intent to resist a peace officer (§ 417.8).
                                       DISCUSSION
       Defendant contends the trial court erred in failing to sua sponte2 stay the sentence
on count 1, pursuant to section 654. He reasons that count 1 (resisting a peace officer
with force or violence) and count 2 (exhibiting a deadly weapon to a police officer with
intent to resist) were part of a continuous course of conduct committed with a singular
intent and objective: to resist arrest. We agree and direct the trial court to stay the
sentence on count 1.
       Though a person may be convicted of more than one crime for the same act,
section 654 proscribes multiple punishments for the same act. (§§ 654, 954; People v.
Correa (2012) 54 Cal.4th 331, 337 (Correa).) An “ ‘act’ ” can include a “ ‘ “course of
conduct.” ’ ” (Correa, at p. 335.)




2  Lack of an objection does not constitute a forfeit of section 654 application. Because a
trial court acts in excess of its jurisdiction and imposes an unauthorized sentence when it
erroneously fails to stay execution of a sentence subject to the multiple punishment ban, a
claim of error on that ground is not forfeitable. (People v. Le (2006) 136 Cal.App.4th
925, 931.)

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         When a course of conduct causes multiple offenses -- each capable of being
independently committed -- section 654 application turns on whether each conviction was
based on a separate, divisible transaction. (Neal v. State of California (1960) 55 Cal.2d
11, 19.) Whether a course of conduct is divisible turns on the defendant’s intent and
objective. (Ibid.) “ ‘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.’ [Citation.]”
(Correa, supra, 54 Cal.4th at pp. 335-336.) But, if a defendant entertained multiple
objectives --independent of and not merely incidental to each other -- multiple
punishment is permitted even if the violations shared common acts or were parts of an
otherwise indivisible course of conduct. (People v. Liu (1996) 46 Cal.App.4th 1119,
1135.)
         A trial court’s finding that a defendant held multiple criminal objectives will be
upheld if supported by substantial evidence. (People v. Herrera (1999) 70 Cal.App.4th
1456, 1466, disapproved on other grounds in People v. Mesa (2012) 54 Cal.4th 191, 199.)
Where, as here, the trial court makes no express section 654 findings, we consider
whether substantial evidence supports an implied finding of a separate intent and
objective. (People v. Islas (2012) 210 Cal.App.4th 116, 129.)
         Here, the record does not support an implied finding that defendant maintained
independent criminal objectives when he resisted a peace officer in count 1 and exhibited
a deadly weapon to a police officer to resist arrest in count 2. The People suggest that
defendant’s course of conduct is divisible into two distinct criminal objectives: his
objective for count 1 “was to physically resist arrest whereas . . . [his] objective [for
count two] was to keep the officers away by brandishing the knife.” We disagree.
         Defendant’s conduct throughout the standoff supports only one reasonable
inferred objective. As the prosecutor articulated to the jury: “[T]here’s only one
reasonable explanation for what’s going on, and that’s the defendant is intending to
prevent the officers from doing their job arresting him. That’s his intention.”

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       We similarly reject the People’s argument that defendant’s actions were separated
by sufficient time to reflect. The People rely on People v. Kwok (1998) 63 Cal.App.4th
1236 (Kwok). But Kwok is distinguishable.
       Kwok held that a defendant could be punished for two separate acts of entering the
victim’s home, occurring nine days apart. (Kwok, supra, 63 Cal.App.4th at p. 1257.)
The court explained that to effectuate section 654’s purpose of ensuring punishment is
commensurate with culpability, a defendant may be punished for a course of conduct
directed to a single objective, if the conduct is divisible in time. (Kwok, at p. 1253.)
Multiple punishment was commensurate with culpability in Kwok because each entrance
created a distinct risk of a violent confrontation, and the nine days separating the two
entrances gave ample time to reflect. (Id. at pp. 1256-1257.)
       Kwok relied on In re William S. (1989) 208 Cal.App.3d 313 (William S.)
(abrogated on other grounds as noted in People v. Kirvin (2014) 231 Cal.App.4th 1507),
which upheld multiple punishment where a juvenile burglarized a home, left, and
returned several hours later. (William S., at pp. 315-316.) The court distinguished the
situation from that where a burglar makes a series of brief entries into a dwelling in order
to load a getaway vehicle. (Id. at p. 317.) The court noted at least an hour had passed at
a safe haven offering the juvenile time to reflect (ibid.), the second entry was inspired by
a desire to steal different property, and the second entry doubled the grave risks of violent
confrontation engendered in the initial burglary. (Id. at p. 319.) Thus, the two burglaries
were not so intertwined in a continuous course of conduct to justify section 654’s
application. (William S., at p. 319.)
       Here, the record does not reflect culpability commensurate with multiple
punishment, as seen in Kwok and William S. Defendant’s actions giving rise to the two
counts did not effectively double a grave risk. Nor does the record indicate a second act
was motivated by a goal beyond the original objective of resisting arrest. (Cf. Kwok,



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supra, 63 Cal.App.4th at p. 1257 [noting defendant’s objective for the first entrance into
the victim’s home was much broader than the objective for the subsequent entry].)
         We also note that while courts have found opportunity to reflect in periods as short
as a minute, those instances involved far greater culpability than seen here. (See People
v. Trotter (1992) 7 Cal.App.4th 363, 368 [shots fired, a minute apart, at pursuing police
became more egregious with each successive shot]; People v. Louie (2012)
203 Cal.App.4th 388, 399 [finding 15 minutes afforded sufficient time to reflect and
renew intent where the two criminal acts were incident to different objectives]; People v.
Clair (2011) 197 Cal.App.4th 949, 960-961 [noting that declining to punish defendant for
separate acts of e-mailing child pornography, separated by at least 10 minutes, would
violate § 654’s purpose of ensuring punishment is commensurate with culpability];
People v. Harrison (1989) 48 Cal.3d 321, 338 [rejecting defendant’s argument that he
was less culpable because the victim’s efforts to free herself led to the subsequent
repeated sexual assaults]; see also People v. Perez (1979) 23 Cal.3d 545, 553 [noting a
defendant who commits a number of base criminal acts on the victim is substantially
more culpable than a defendant who commits one such act].)
         We therefore conclude that there is insufficient evidence to support the trial
court’s implied finding of a separate intent and objective. We accordingly modify the
judgment to stay sentence on count 1 pursuant to section 654.
         Finally, our review of the record shows the abstract of judgment contains a clerical
error. The trial court sentenced defendant to one year four months for count 1 (§ 69) and
six years for count 2 (§ 417.8). The abstract of judgment transposes the sentences for the
two counts. We therefore order that the abstract of judgment be amended to correct that
error.
                                        DISPOSITION
         The judgment is modified to stay punishment for count 1 (§ 69), pursuant to
section 654. The trial court is directed to prepare an amended abstract of judgment

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correcting the recording error and staying sentence for count 1. The trial court is further
directed to forward a certified copy to the Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.




                                            /s/
                                          Blease, Acting P. J.


We concur:




         /s/
       Robie, J.




         /s/
       Butz, J.




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