Filed 1/12/15 P. v. Sawyer CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064752

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN305905)

FRANKLIN SAWYER,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Richard E.

Mills, Judge. Affirmed as modified and remanded with directions.

         Siri Shetty, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette and Julie L. Garland,

Assistant Attorneys General, A. Natasha Cortina and Christine Levingston Bergman,

DeputyAttorneys General.
       A jury convicted Franklin Sawyer of making a criminal threat (Pen. Code,1 § 422;

count 1), false imprisonment by violence or menace (§§ 236/237, subd. (a); count 3),

evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a); count 4), and

unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a); count 5).

       In a bifurcated hearing, Sawyer admitted he suffered two serious felony priors,

two strike priors, and one prison prior. The court dismissed one of the strike priors

pursuant to section 1385. It sentenced Sawyer to a total of 20 years in prison as follows:

a principal term of six years for count 4, consecutive terms of 16 months on the

remaining counts, and 10 years for the serious felony priors. Further, it imposed but

stayed the sentence on the prison prior.

       Relying on section 654, Sawyer contends he committed false imprisonment and

criminal threat under a single intent and therefore the sentence on one of those crimes

should be stayed. Further, Sawyer contends the court erred by staying, rather than

striking, the prison prior. We conclude Sawyer had the same objective in committing

both crimes. Accordingly, we affirm the judgment as modified, and remand with

directions.

                      FACTUAL AND PROCEDURAL HISTORY

       On May 18, 2012, Rosa Torres left her car keys in the ignition and stepped out of

her car to throw a bag of garbage in a dumpster. Sawyer took Torres's car without her

permission. Oceanside Police Department Officer Karina Pina responded to a stolen car



1      All statutory references are to the Penal Code unless otherwise noted.
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report and immediately saw a car matching the description of Torres's car. Officer Pina

turned on her overhead lights and siren. Sawyer drove the vehicle fast and Officer Pina

gave chase. Sawyer maneuvered around cars and went into the opposite lane to pass a

vehicle. Officer Pina accelerated to 70 miles per hour, but could not catch up with

Sawyer until he made a wide turn and crashed. Sawyer ran towards a nearby house and

jumped the fence. Officer Pina called for backup police to set up a perimeter around the

area.

        Debbie Osterloh, a resident of a senior community in Oceanside, noticed her dog

lunging at a closed closet door in her room. Osterloh tried to calm her dog by opening

one closet door. Sawyer jumped out of the other closet door, put both of his hands

around Osterloh's neck for approximately a minute and said, "If you yell out, I'll kill

you." Sawyer let go of Osterloh and told her to sit down on the couch. Sawyer asked if

she believed in God and said, "I need your help." Osterloh was afraid and confused and

did not know if Sawyer had a weapon. Sawyer again asked for help and Osterloh told

him to leave. Osterloh saw that police officers were outside her windows. Sawyer put

his hands on her breasts and tilted her below the windowsill. He covered her mouth with

one of his hands and put his other hand on the back of her neck. He again threatened her:

"If you say anything or yell out, I will kill you." Osterloh believed him. Sawyer held her

down for approximately five more minutes.

        While police knocked on the front door, Osterloh told Sawyer that all of the police

were in the front yard and he should leave before they went to the backyard. Sawyer left

through the garage, and was apprehended by police. Paramedics treated Osterloh at her

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residence but she elected not to go to the hospital that day. At trial, Osterloh testified the

incident lasted approximately 15 minutes.

       The probation officer recommended that section 654 applied because: "[t]he

conduct involved in counts three, four and five all occurred on the same occasion, or

crime spree by the defendant. Based on this, the probation officer has recommended that

the terms in each of those counts be sentenced to be served concurrently with the term

imposed in count one." At sentencing, the court rejected that recommendation, ruling:

"[T]hese are not [section] 654 charges. They're flat out not. It's not even a good

argument legally. It's a good argument maybe morally and strategically, but it's not a

good legal argument."

                                       DISCUSSION

                                              I.

                 Section 654 Bars Multiple Punishment on Counts 1 and 3

       Sawyer contends the count 1 criminal threat facilitated the count 3 false

imprisonment and the two crimes shared the same objective: to prevent Osterloh from

alerting the police.

Applicable Law

       Section 654, subdivision (a), states: "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." Section 654 "precludes multiple

punishment for a single act or omission, or an indivisible course of conduct." (People v.

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Deloza (1998) 18 Cal.4th 585, 591.) If a defendant suffers two convictions and

punishment for one is barred by section 654, "that section requires the sentence for one

conviction be imposed, and the other imposed and then stayed." (Deloza, supra, 18

Cal.4th at pp. 591-592.)

       Whether a course of conduct is indivisible for purposes of section 654 depends on

the intent and objective of the defendant, not the temporal proximity of the offenses.

(People v. Hicks (1993) 6 Cal.4th 784, 789; People v. Harrison (1989) 48 Cal.3d 321,

335.) If all the criminal acts were incident to one objective, then punishment may be

imposed only as to one of the offenses committed. (People v. Beamon (1973) 8 Cal.3d

625, 636-639 (Beamon).) If there were multiple objectives, punishment may be imposed

for each crime even if the objectives were furthered by " 'common acts or were parts of

an otherwise indivisible course of conduct.' " (People v. Vidaurri (1980) 103 Cal.App.3d

450, 465.)

       Whether section 654 applies in a given case is a question of fact for the court, which

is vested with broad latitude in its determination. (People v. Hutchins (2001) 90 Cal.App.4th

1308, 1312.) We review the court's findings in the light most favorable to the judgment and

will not reverse them on appeal if there is any substantial evidence to support them. (Ibid.)

Evidence is substantial where it is reasonable, credible and of solid value from which a

reasonable trier of fact could make the finding in question. (People v. Snow (2003) 30

Cal.4th 43, 66.) We presume the existence of every fact in support of the court's conclusion

that the trier of fact could reasonably deduce from the evidence. (People v. Cleveland (2001)

87 Cal.App.4th 263, 271.)

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       "[T]here can be no universal construction which directs the proper application of

section 654 in every instance." (Beamon, supra, 8 Cal.3d at p. 636.) "Notwithstanding

the apparent simplicity of its language, the applicability of section 654 in a particular case

often involves a difficult analytical problem. [Citation.] Each case must be determined

on the basis of its own facts, and general principles applicable to one type of case may

not apply to another." (In re Adams (1975) 14 Cal.3d 629, 633; see also 3 Witkin &

Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 248, pp. 397-399.)

       Under section 237, an element of felony false imprisonment is the defendant's "use

of violence, menace, fraud, or deceit." The court instructed the jury regarding the

elements of that offense: "To prove that the defendant is guilty of this crime, the People

must prove that: [¶] 1. The defendant intentionally restrained, confined, or detained

someone or caused that person to be restrained, confined, or detained by violence or

menace; AND 2. The defendant made the other person stay or go somewhere against that

person's will. [¶] Violence means using physical force that is greater than the force

reasonably necessary to restrain someone. Menace means a verbal or physical threat of

harm. The threat of harm may be express or implied."

        Although the People also charged Sawyer with committing the lesser included

offense of misdemeanor false imprisonment, and the court instructed the jury on that




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charge—which did not require the use of force, violence or menace—the jury elected not

to convict Sawyer of the lesser offense.2

Analysis

       Giving all deference to the trial court's findings and in light of the facts of the case,

we conclude section 654 bars multiple punishment on counts 1 and 3.

       The record shows Sawyer's threat and his false imprisonment of Osterloh were

part of an indivisible course of conduct lasting the entire 15 minutes from the time

Sawyer was discovered in the residence until he left the residence. Osterloh testified

Sawyer grabbed and threatened her almost immediately upon his exiting the closet.

Sawyer threatened to kill Osterloh, thus preventing her from alerting the authorities

regarding his presence. Under these circumstances, section 654 bars double punishment

for a course of conduct constituting one indivisible transaction with one criminal

objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1216 (Latimer); People v. Lee

(1980) 110 Cal.App.3d 774, 785.) The purpose of the protection against multiple

punishment is to ensure that the defendant's punishment will be commensurate with his

criminal liability. (Neal, supra, 55 Cal.2d at p. 20.)



2        The court instructed the jury regarding misdemeanor false imprisonment: "The
defendant is charged as a lesser included crime in Count Three with false imprisonment
in violation of Penal Code section 237 [subdivision] (a). [¶] To prove that the defendant
is guilty of this crime, the People must prove that: [¶] 1. The defendant intentionally
restrained, detained, or confined a person; AND 2. The defendant's act made that person
stay or go somewhere against that person's will. [¶] An act is done against a person's
will if that person does not consent to the act. In order to consent, a person must act
freely and voluntarily and know the nature of the act. [¶] False imprisonment does not
require that the person restrained or detained be confined in jail or prison."
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       In Latimer, supra, 5 Cal.4th at p. 1206, the defendant kidnapped the victim, drove

her to a nearby desert area, and raped her twice. The defendant and the victim were

running errands when the defendant drove to an undeveloped area of a nearby desert.

The defendant assaulted the victim and forced her to undress. He raped her and forced

her to orally copulate him. Afterwards, the defendant and the victim got dressed and then

the defendant drove 50 to 75 yards further into the desert and raped her again. The

defendant pleaded nolo contendere to one count of kidnapping and two counts of forcible

rape. (Ibid.) On appeal, he contended his sentence for the kidnapping conviction should

be stayed under section 654. The Supreme Court agreed: "Although the kidnapping and

the rapes were separate acts, the evidence does not suggest any intent or objective behind

the kidnapping other than to facilitate the rapes." (Latimer, at p. 1216.) In this case,

Sawyer was fleeing the police and attempted to prevent Osterloh from alerting the police

of his presence. To accomplish this, Sawyer threatened her and held her down. Just as in

Latimer, there is nothing in the record to indicate Sawyer had any intent behind the

criminal threat beyond facilitating his imprisonment of Osterloh. In this case there is an

even stronger basis to apply section 654 than in Latimer, where the defendant committed

separate acts of rape in separate places.

       Citing People v. Nguyen (1988) 204 Cal.App.3d 181, the People argue Sawyer's

gratuitous violence supports imposing separate punishment. Nguyen is distinguishable on

its facts. There, the defendant and his partner robbed a market when the defendant's

partner took the store clerk to the backroom. (Id. at p. 190.) While the defendant was at

the store's till, his partner took the store clerk's valuables, and then forced him to lie on

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the floor in an attempt to forestall any resistance. Once the store clerk was on the ground,

the defendant's partner shot him. (Ibid.) The court concluded that under section 654, the

crimes of robbery and attempted murder should be sentenced separately: " '[A]t some

point the means to achieve an objective may become so extreme they can no longer be

termed 'incidental' and must be considered to express a different and a more sinister goal

than mere commission of the original crime. . . . [¶] . . . [¶] . . . [S]ection [654] cannot,

and should not, be stretched to cover gratuitous violence or other criminal acts far beyond

those reasonably necessary to accomplish the original offense.' " (Nguyen, at p. 191.)

Nguyen is distinguishable because there the defendant's partner had already put the store

clerk in a position to detain him and accomplish the robbery. Shooting the store clerk

was unnecessary to accomplish the defendant's objective. The attempted murder was not

incidental to the robbery.

       By contrast, here, Sawyer's criminal threat and his false imprisonment were

committed at the same time and with the single objective of evading police capture.

Further, the prosecutor argued that Sawyer's use of force, violence or menace provided an

element for his false imprisonment conviction. Therefore, he cannot be separately

punished for that use of violence or menace, which the People now describe as

gratuitous.3



3      In arguing for a conviction on the greater offense, the prosecutor stated:
"[Osterloh] didn't want to be in this room with [Sawyer]; didn't want to be forced on that
bed and forced to sit there with this stranger in her house threatening to kill her who had
strangled her, pulled her on the bed, grabbing her by the arm, and was pushing her down
on the bed, holding her by the neck. [¶] So all of that is done with violence. I don't think
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       Nor are we persuaded by the People's reliance on People v. Trotter (1992) 7

Cal.App.4th 363, in which the Court of Appeal concluded there was no section 654 error

in the imposition of consecutive sentences for two assaults. (Id. at p. 368.) In Trotter,

the defendant, while fleeing in a taxi from a police officer, fired three shots at the police

car pursuing him. The first two shots were a minute apart, while the third came moments

after the second. (Id. at pp. 365-366.) The appellate court held the trial court did not err

by separately punishing the defendant for the first two shots, and not the third. Each

successive shot by the defendant made his conduct more egregious, and each shot posed a

"separate and distinct risk" to the officer and the freeway drivers. (Id. at p. 368.) It

explained further that "this was not a case where only one volitional act gave rise to

multiple offenses. Each shot required a separate trigger pull." (Ibid.) Unlike in Trotter,

there is no evidence Sawyer's crimes became more "egregious" as they were committed

or that they posed "separate and distinct risk[s]."

                                              II.

                                   One-Year Prison Prior

       The People concede, and we agree, that under section 667.5, the trial court erred

by staying, rather than striking, the one-year prison enhancement under section 667.5

subdivision (b) because it served as the basis for one of the serious felony priors under

section 667, subdivision (a)(1), and the latter was a greater sentence. Accordingly, the




there's any dispute over how [Sawyer] falsely imprisoned [Osterloh] in that room and on
that bed. He used violence and he used menace to keep her in there."

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one-year prison enhancement must be stricken. (People v. Perez (2011) 195 Cal.App.4th

801, 805, citing People v. Jones (1993) 5 Cal.4th 1142, 1150-1153.)

                                     DISPOSITION

      We stay the sentence on making a criminal threat (Pen. Code, § 422; count 1)

pursuant to Penal Code section 654, subdivision (a), and strike the Penal Code, section

667.5 subdivision (b) one-year prison enhancement; as so modified, the judgment is

affirmed. The superior court is directed to prepare an amended abstract of judgment

reflecting these modifications and forward a certified copy to the Department of

Corrections and Rehabilitation.


                                                                          O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


HALLER, J.




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