Filed 12/1/15 P. v. Sardelli 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,
                                                                     A144722
v.
JOHN ROBERT SARDELLI,                                                (Napa County
                                                                     Super. Ct. No. CR171092)
         Defendant and Appellant.


         John Robert Sardelli (appellant) appeals from a judgment entered after he pleaded
no contest to various domestic violence related crimes and the trial court sentenced him
to five years in state prison. He contends the trial court erred in imposing concurrent
sentences for the offenses instead of staying the sentences under Penal Code, section 654.
We reject the contention and affirm the judgment.
                              FACTUAL AND PROCEDURAL BACKGROUND
         On June 27, 2014, an information was filed charging appellant with inflicting
corporal injury on a cohabitant (Pen. Code,1 § 273.5, subd. (a); count 1), battery with
serious bodily injury (§ 243, subd. (d); count 2), making criminal threats (§ 422; count 3),
and false imprisonment by violence (§ 236; count 4). The information alleged as to
count one that appellant inflicted great bodily injury in the commission of the offense
(§ 12022.7, subd. (e)).


         1
             All further statutory references are to the Penal Code unless otherwise stated.


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       At the preliminary hearing,2 Jane Doe testified that on June 2, 2014, she was living
with appellant, who was her boyfriend at the time. They were listening to music and
drinking in their living room, “[j]ust having a good time.” At one point, appellant and
Doe got into an argument when appellant said he wanted to go and buy more alcohol, and
Doe told him no, and that “it wasn’t a good idea.” Doe got up and walked back to the
bedroom, passing by the entryway by the front door. Appellant was in the entryway with
a half-empty bottle of wine, which he smashed on the floor in anger. Doe told him she
was not cleaning it up and was going to bed. She turned to walk into the bedroom and
appellant called her name. When Doe turned back around, appellant pushed her with
both hands on her chest, causing Doe to fall backwards into the bedroom and land on her
hands and tailbone. She felt “shooting pains” and told appellant that she thought her
wrist was broken.
       As Doe tried to get up, appellant came into the bedroom, straddled her with his
knees, grabbed her wrists, and asked her if they hurt. Doe responded yes. Appellant then
began choking Doe by grabbing her throat firmly with both hands so that she could not
breathe. He held on to her throat for about 20 seconds and asked her if she wanted to die.
Doe was unable to push him off with her hands or kick him off with her legs; she felt
helpless and afraid. She made a noise while trying to catch her breath, at which point
appellant got up, called her a “cunt,” and walked away.
       A few minutes later, appellant came by to ask Doe if she was badly hurt; she
responded that she was. When appellant tried to help her, Doe, who was still afraid, told
him not to touch her. Shortly thereafter, the police knocked on the door. Appellant
grabbed Doe’s arm, directed her to the bedroom, and told her to pretend they were
sleeping. Four officers entered the bedroom and asked why appellant and Doe had not
answered the door; they responded they had been sleeping. An officer spoke with Doe
separately in the dining room. Doe told the officer that she and appellant had been
drinking and that the neighbors must have called the police because they were playing
       2
       The parties stipulated that the factual basis of the plea would be based on the
preliminary hearing transcript.


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music too loudly. Doe denied they were fighting, and indicated she was fine. The
officers left. Doe did not sleep much that night.
       The next morning, Doe was in a lot of pain and went to the hospital for an
examination and treatment. She was diagnosed with having suffered a fracture in her
right wrist, a fractured tailbone, and sprains and bruising. There was also some contusion
and bruising on her neck. After being released from the hospital, she still experienced
pain in her hands, arm, back and tailbone, and had trouble sleeping. At the time of the
preliminary hearing, she was wearing a cast, which she anticipated wearing for four to
six weeks, and could not twist, pull, push, or pick up heavy things. She had to take time
off work as a result of her injuries.
       When Doe was interviewed at the hospital by police, she stated that when
appellant was choking her, she did not feel he would actually kill her but that she was
afraid for her safety given what he had already done to her. Appellant had been violent to
Doe in the past when he was drinking. She testified about incidents in April and May
2014, when appellant punched her in the legs. In May 2014, appellant also threatened to
throw her off the balcony, throw her head into the wall, or smash a brick in her face. At
the preliminary hearing, she testified that she did not think appellant was capable of
killing her, but that “in the moment,” she “wasn’t sure.”
       Appellant pleaded no contest to all four counts and admitted the great bodily
injury allegation as to count one, in exchange for a court-indicated maximum of
five years in state prison. The trial court sentenced him to five years in state prison,
computed as follows: the low term of two years for corporal injury plus three years on
the great bodily injury enhancement (count 1); the low term of two years for battery to
run concurrent (count 2); the midterm of three years for criminal threats to run concurrent
(count 3); and the midterm of two years for false imprisonment to run concurrent
(count 4). The court also imposed restitution, fees, and fines, and awarded 318 days of
presentence custody credits. Appellant filed a timely notice of appeal and requested and
obtained a certificate of probable cause.



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                                       DISCUSSION
       Appellant contends the trial court erred in imposing concurrent sentences for
battery in count two, criminal threats in count three, and false imprisonment in count four
because his convictions for all four counts were based on the same underlying conduct
and shared the same objective of controlling Doe. We disagree.
       Section 654, subdivision (a), 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.” The purpose of
the statute is to ensure that punishment is commensurate with a defendant’s culpability.
(People v. Latimer (1993) 5 Cal.4th 1203, 1211.) The proscription applies to a course of
conduct violating more than one statute, where the offenses were incident to one
objective. (People v. Martinez (2005) 132 Cal.App.4th 531, 535.) Section 654 precludes
multiple punishment for a single act or omission, or an indivisible course of conduct.
(People v. Deloza (1998) 18 Cal.4th 585, 591.)
       Under California law, it is the defendant’s intent and objective that determines
whether the course of conduct is indivisible. Thus, if “ ‘ “all of the offenses were merely
incidental to, or were the means of accomplishing or facilitating one objective, defendant
may be found to have harbored a single intent and therefore may be punished only
once.” ’ ” (People v. Le (2006) 136 Cal.App.4th 925, 931.) Moreover, because
section 654 prohibits multiple punishments, not multiple convictions, its proscription
extends to include both concurrent and consecutive sentences. (In re Adams
(1975) 14 Cal.3d 629, 636.)
       Section 654 does not apply when the evidence discloses that a defendant
entertained multiple criminal objectives independent of each other. (People v. Liu (1996)
46 Cal.App.4th 1119, 1134.) In that case, “the trial court may impose punishment for
independent violations committed in pursuit of each objective even though the violations
shared common acts or were parts of an otherwise indivisible course of conduct.” (Ibid.)



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Once again, “[t]he divisibility of a course of conduct depends upon the intent and
objective of the defendant.” (Id. at p. 1135.)
       The question of whether the acts of which a defendant has been convicted
constitute an indivisible course of conduct is primarily a factual determination, made by
the trial court on the basis of its findings concerning the defendant’s intent and objective
in committing the acts. (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) The trial
court’s findings are reviewed “ ‘in a light most favorable to the respondent and presume
in support of the order the existence of every fact the trier could reasonably deduce from
the evidence.’ ” (People v. Green (1996) 50 Cal.App.4th 1076, 1085.) “A trial court’s
implied finding that a defendant harbored a separate intent and objective for each offense
will be upheld on appeal if it is supported by substantial evidence.” (People v. Blake
(1998) 68 Cal.App.4th 509, 512.)
       Where, as here, the trial court does not make an express finding under
section 654,3 an implied finding that the crimes were divisible must be upheld if
supported by the evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.) “If
section 654, subdivision (a) requires that a sentence be stayed, then concurrent
terms . . . may not be imposed.” (People v. Hernandez (2005) 134 Cal.App.4th 1232,
1239.) Where multiple punishment has been improperly imposed, the proper procedure
is for the reviewing court to modify the sentence to stay imposition of the lesser term.
(People v. Butler (1996) 43 Cal.App.4th 1224, 1248.)
       Here, substantial evidence supports the trial court’s implied finding that
section 654 authorized separate punishment for the four offenses. Appellant asserts that
his “primary objective” in committing the four offenses “appears to have been to
control . . . Doe after she refused to allow him to use her bank card to purchase more
wine.” The evidence shows, however, that he had separate criminal intents in committing
each of the offenses. First, in inflicting corporal injury to Doe resulting in great bodily
injury, appellant acted with the intent to exert his dominance over her. He became angry
       3
        Neither the prosecutor nor appellant argued the applicability of section 654 to this
case, and the trial court did discuss it.


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and smashed a bottle of wine on the floor when Doe told him he could not buy any more
alcohol. When Doe responded that she was not going to clean the mess and was going to
bed, appellant forcefully pushed her in order to exert dominance over her and show her
that she should not defy him.
        Second, as to count two, battery with serious bodily injury, appellant acted with
the intent to cause physical harm to Doe. After pushing Doe down, he got on top of her
and grabbed her wrist—which she said she thought was broken—then proceeded to
choke her, holding her neck firmly for about 20 seconds, causing bruising on her neck
and impeding her ability to breathe. Appellant’s intent in choking Doe was to cause her
harm.
        Third, in making a criminal threat against Doe, appellant’s intent was to threaten
her life. While on top of her and strangling her, appellant asked Doe, “do you want to die
tonight?” It can be reasonably inferred from the fact that he asked her if she wanted to
die, while choking her firmly for 20 seconds, that he intended for Doe to take that
statement as a threat.
        Fourth, false imprisonment involves intentionally restraining, confining, or
detaining someone by violence or menace, and causing the other person to stay or go
somewhere against their will. (See CALJIC No. 1240.) When appellant got on top of
Doe, straddled his legs around her, and proceeded to strangle her, he did so in a way that
prevented her from getting up. She testified that she was unable to push him off with her
hands or kick him off with her legs; she felt helpless and afraid. Based on these facts,
there was substantial evidence that appellant’s intent was to use physical force to prevent
Doe from freely leaving.
        Although appellant’s acts, which led to the convictions on counts one through
four, stemmed from one violent course of conduct, the evidence shows that appellant had
multiple objectives in attacking Doe. Based on the evidence, the trial court could have
reasonably determined that he had different objectives—exerting dominance over Doe,
physically harming her, threatening her life, and preventing her from leaving—in
committing the four crimes to which he pleaded no contest, and of which he was found


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guilty. In light of the different objectives he had in committing the four crimes,
section 654 did not preclude multiple punishments. Accordingly, the trial court did not
err in sentencing appellant on all counts.
                                       DISPOSITION
       The judgment is affirmed.

                                                 _________________________
                                                 McGuiness, P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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