Filed 8/9/16 P. v. Winkler CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067975

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD257780)

PAUL LIONELL WINKLER,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Kenneth

K. So, Judge. Affirmed.

         Cannon & Harris and Donna L. Harris, under appointment by the Court of Appeal,

for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,

Assistant Attorneys General, Megan J. Beale and Kelly Ann Johnson, Deputy Attorneys

General, for the Plaintiff and Respondent.
       A jury convicted Paul Lionell Winkler of assault by means likely to cause great

bodily injury (Pen. Code,1 § 245, subd. (a)(4); count 1), corporal injury to a cohabitant

resulting in a traumatic condition (§ 273.5, subd. (a); count 3), false imprisonment by

violence, menace, fraud or deceit (§§ 236, 237, subd. (a); count 4 ), and misdemeanor

child endangerment (§ 273a, subd. (b); counts 5, 6, and 7). It found Winkler guilty of

misdemeanor assault (§ 240) as a lesser included offense to assault with a deadly weapon

alleged in count 2. The trial court found true allegations that Winkler had suffered one

strike prior conviction (§§ 667, subds. (b)-(i), 1170.12, 668) and had served four prior

prison terms (§ 667.5, subd. (b)). On the People's motion it struck an alleged serious

felony prior conviction (§ 667, subd. (a)(1)). The court sentenced Winkler to an

aggregate term of nine years in state prison, consisting of a doubled midterm of six years

on count 3, a doubled midterm of six years on count 1 stayed under section 654, a

concurrent doubled midterm of four years on count 4, 180 days each on counts 2, 5, 6 and

7 (with counts 2 and 7 to be served concurrently and counts 5 and 6 to be consecutive to

count 3), and consecutive one-year terms for each of three prior prison convictions. The

court struck the fourth prior prison conviction. It ordered the nine-year prison term to be

served consecutively to one year in local custody.

       On appeal, Winkler contends the trial court erred and denied him his state and

federal constitutional rights to cross-examination and confrontation by admitting into

evidence the prior testimony of Winkler's cohabitant, A.A., and two of her children after



1      Statutory references are to the Penal Code unless otherwise stated.
                                             2
the prosecutor failed to exercise due diligence in attempting to secure their presence at

trial. He further contends the evidence was insufficient to support his count 7 conviction

for endangerment as to another child of A.A. Finally, Winkler contends imposition of a

concurrent term on the count 4 conviction violated section 654's proscription against dual

punishment for a single act or course of conduct. We affirm the judgment.

                    FACTUAL AND PROCEDURAL BACKGROUND

       The factual background is taken in part from the November 2014 preliminary

hearing testimony of A.A., R.A. and T.A., which was read into the record at trial after the

trial court found them to be unavailable.

       A.A. had a ten-month dating relationship with Winkler, during which Winkler

became abusive toward her and her children from another relationship, sons T.A. and

R.A., and daughter B.A.2 A.A. also had a daughter with Winkler, P.A., who was born in

July 2014. For a time, they all lived together in a one-room apartment at a transitional

homeless shelter.

       After P.A. was born, Winkler began threatening and hitting A.A. On August 5,

2014, while the family was out in public, Winkler accused A.A. of making sexual

gestures to others by merely eating a piece of pizza, and told her she had "fuck[ed] up the

day" by scratching her nose. A.A., Winkler and the two girls then returned to their

apartment while the boys went to the library. Winkler told A.A. to enter the bathroom,



2      We use the initial T. for A.A.'s younger son's nickname, as his given name starts
with the same letter as his mother's. At the time of the preliminary hearing, T.A. was
nine years old, R.A. was eleven years old, and B.A. was four years old.
                                             3
turned on music to block any noise, instructed her to get on her knees, pushed her down,

tied her hands and mouth with clothing, and hit her repeatedly with his belt while he held

her down and she begged him to stop. A.A.'s head struck the toilet while Winkler hit her.

Winkler only stopped when A.A. told him she would sign a contract. Winkler untied

A.A. and A.A. got up off the floor. A.A. told Winkler what to write and they both signed

the contract, in which A.A. agreed not to do anything behind his back or make sexual

gestures to any children or adults. After they signed the contract, they sat down "for a

little bit," but Winkler kept asking A.A. how she had learned to make her gestures, and

when she said she did not know, he began hitting her again with an electrical cord until

A.A. lied and told him she had learned them from an old lady. At the time, B.A. was in

bed sleeping and P.A. was on the bed. Winkler asked A.A. if she was teaching her

gestures to her children, and when she responded yes, he told her when they returned they

were "going to get their ass whooped."

       A.A. was sitting on the bed with P.A. when T.A. and R.A. returned home. She

remained quiet at Winkler's demand. Winkler told the boys to strip down to their boxer

shorts, and that he would hit them—give them the "whooping of [their] life"—if they lied

to him. He asked R.A. if he ever had sex with A.A. and other detailed and graphic

questions about what they had done sexually. He then asked the same questions of T.A.

When the boys responded in the negative, he raised up his belt. Winkler hit T.A. in the

leg. Winkler continued asking the questions until the boys began to lie and say yes. B.A.

was awake on the bed and close enough to hear the incident. Winkler thanked the boys

and told A.A. to return to the bathroom, where he accused her of having sex with her

                                             4
sons, slapped her, and choked her with the belt until she passed out. When A.A. awoke,

Winkler told her to fix her hair and cover the knot on her temple.

       A.A. was eventually able to run to the manager's office at the shelter. A.A. was

scared and upset, and the manager, George Ossavou, felt she needed to confide in

someone and needed help. A.A. told Ossavou that she had been the victim of domestic

violence, it had been going on for a long time, and she wanted Winkler to leave. A.A.

explained she had been choked and that Winkler forced her to say she was having sex

with her children, and she showed Ossavou a bump on her forehead and a bruise on her

arm. She did not want Ossavou to call police because she felt there would be

repercussions. Ossavou saw that R.A. was sad and upset, and that T.A. and B.A. were

crying. Ossavou spoke with all three children at the same time; R.A. told Ossavou that

Winkler was "beating us up, he's threatening us, he's asking us to say that we're having

sex with our mom." Ossavou could not recall what T.A. told him.

       Ossavou spoke to Winkler and told him to leave the program, to which Winkler

responded by accusing A.A. of molesting her children. Ossavou eventually called police.

Winkler left with P.A.

       San Diego Police Officer Jamie Huntley responded to Ossavou's call, and when

she contacted A.A., saw a bump on A.A.'s head. A.A. was afraid and upset, and seemed

"cloudy" from being hit in the head. A.A. complained of pain to her back and arm, and

the officer saw two small scratch marks on A.A.'s upper/mid back. A.A. recounted to

Officer Huntley what had happened that day, including when Winkler told her to enter

the bathroom, knocked her to the ground, tied up her hands and mouth, and struck her

                                             5
with his belt. A.A. reported that Winkler grabbed the hair on the back of her head and

slammed her head against the toilet. A.A. reported that Winkler strangled her with the

belt and that she lost consciousness for a short period of time. Officer Huntley spoke

with all three children. B.A. was just playful and wanted to look at the items in the

officer's belt. T.A. and R.A. both appeared timid and afraid to discuss the matter, but

both described in some detail Winkler's demand that they strip to their shorts and his

questions and threats. T.A. also told the officer he could hear his mother from the

bathroom asking Winkler why he was choking her and tying her hands, and he heard

choking sounds from the door. According to T.A., Winkler told him, "I would have

already killed this girl if she wasn't your mother." R.A. similarly reported that Winkler

had told him, "The only reason why I haven't killed this bitch yet is because she's your

mother." R.A. stated Winkler had hit him with Winkler's belt six or seven times before.

       A.A. went to the hospital and spoke with detectives. An emergency room

physician observed she had a swollen bruise on her forehead.

       A police officer arrested Winkler the next day, and Winkler asked the officer to

look at the contract that A.A. had signed the previous day promising not to "do any

sexual gestures or signing to any kids or adults" behind Winkler's back or lie about it.

                                      DISCUSSION

                     I. Admission of Preliminary Hearing Testimony

A. Background

       The trial court conducted jury selection and heard pretrial motions on March 11

and 12, 2015. On Monday, March 16, 2015, the prosecutor notified the court that she had

                                             6
been informed early that morning that A.A. and her children were not at home. She

related that A.A. had been personally served with a subpoena, district attorney

investigator Todd Brehart had spoken with A.A. the previous Friday, they were ready to

be present and Brehart was scheduled to pick them up that morning. She asked the court

to issue a bench warrant and trail the trial until the next day. Winkler's counsel objected

and asked that the case be dismissed. The court trailed the matter until the next morning.

       The next morning, the prosecutor confirmed that A.A. was not present in San

Diego. She explained that after learning of A.A.'s absence, her office had pulled

Winkler's jail calls, which showed approximately 22 calls to A.A. including on a different

inmate's phone time, and during them A.A. had stated she was in Nebraska where her

family lived. The prosecutor could not independently confirm that fact with the airlines.

She reiterated that the People had subpoenaed A.A. and her children, but A.A. had

chosen to ignore the subpoena and it was apparent from the calls that A.A. already knew

she was not going to come to court; that she had "worked out this plan with [Winkler]."

The prosecutor moved the court to find A.A. unavailable. Defense counsel again

objected, pointing out that A.A. had stated in phone calls with Winkler that after the

preliminary hearing she told the district attorney that she was not going to testify again

and was not coming back.3 He argued the district attorney was on notice A.A. was

planning to leave, but did not take necessary steps to secure her presence.




3     At trial, the tape-recorded jail calls between Winkler and A.A. were played for the
jury.
                                              7
       The court heard testimony from investigator Brehart, who was assigned to contact

A.A. and her children, and district attorney investigator Robert Guadarama. Brehart

testified that he and the prosecutor had met with A.A. before the preliminary hearing and

served her with a subpoena, and she and her children appeared and testified at that

hearing. Thereafter, investigator Guadarama subpoenaed A.A.4 and Brehart met with

A.A. in person on Thursday of the prior week, explaining to her that they were going to

trial on Monday and he would personally pick her and the children up and drive them to

court. Brehart testified that at the time, A.A. seemed "on board" with that plan, and at no

point told him she did not want to testify and would be leaving town. He stated that A.A.

gave him no indication she would fail to appear. When Brehart arrived at A.A.'s

apartment on Monday, it was vacant. He spoke with some of the residents as well as the

property manager, and was told no one had seen A.A. since the previous Friday. On

cross-examination, Brehart admitted he had some difficulty contacting A.A. on her phone

before he met with her the previous week, and that he had access to jail calls but did not

conduct an investigation into any jail calls leading up to trial. Brehart testified that he




4       Investigator Guadarama later testified that he went to A.A.'s apartment on March
6, 2015, and when he knocked on the door A.A. answered right away. He identified
himself and the fact he was serving her subpoenas, and he served A.A. with subpoenas
for her and her children. Investigator Guadarama testified that at no point did A.A.
indicate she was not interested in showing up for trial or she was going to be leaving the
state. His only conversation with her was to tell her he was serving the subpoenas and
she should call the office to coordinate, and he gave her contact numbers in case anything
changed. After hearing this testimony, the trial court found that the foundation had been
laid for admission of the preliminary hearing testimony.
                                               8
was not aware that A.A. was in contact with Winkler via jail calls or putting money on

his prison books, even though he had access to that information.

       Defense counsel argued that due diligence required the prosecution to listen to

A.A.'s jail calls with Winkler and had that been done, the prosecution would have known

A.A. planned to leave the state. The prosecutor pointed out that every indication was that

A.A. was on board; that she had been subpoenaed and had an in-person meeting with

investigator Brehart who confirmed he would pick her up for trial. She argued her office

had no idea A.A. was not planning to come or that she was talking to Winkler on jail

calls, and had A.A. been uncooperative, they would have reviewed the jail calls, but

every conversation with A.A. was to the contrary.

       The court found A.A., T.A. and R.A. were subpoenaed and unavailable as

witnesses, and ruled the People could admit their sworn testimony from the preliminary

hearing.

B. Legal Principles

       The confrontation clauses of both the federal and California Constitutions

guarantee a criminal defendant the right to confront the prosecution's witnesses. (U.S.

Const., 6th Amend.; Cal. Const. art. I, § 15.) This right, however, is not absolute.

(People v. Sanchez (2016) 63 Cal.4th 411, 440; People v. Cromer (2001) 24 Cal.4th 889,

897 (Cromer).) "If a witness is unavailable at trial and has given testimony at a previous

court proceeding against the same defendant at which the defendant had the opportunity

to cross-examine the witness, the previous testimony may be admitted at trial. In a

criminal case, the prosecution bears the burden of showing that the witness is unavailable

                                             9
and, additionally, that it made a 'good-faith effort' [citation] or, equivalently, exercised

reasonable or due diligence to obtain the witness's presence at trial." (Sanchez, at p. 440.)

       Evidence Code section 1291, subdivision (a), provides: "Evidence of former

testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a

witness and: [¶] . . . [¶] . . . The party against whom the former testimony is offered

was a party to the action or proceeding in which the testimony was given and had the

right and opportunity to cross-examine the declarant with an interest and motive similar

to that which he has at the hearing." A witness is considered "unavailable" if "[a]bsent

from the hearing and the proponent of his or her statement has exercised reasonable

diligence but has been unable to procure his or her attendance by the court's process."

(Evid. Code, § 240, subd. (a)(5).) " '[T]he term "due diligence" is "incapable of a

mechanical definition," but it "connotes persevering application, untiring efforts in good

earnest, efforts of a substantial character." ' " (People v. Sanchez, supra, 63 Cal.4th at

p. 440; People v. Cromer, supra, 24 Cal.4th at p. 904.) Relevant considerations include

whether the search was timely begun, the importance of the witness's testimony, and

whether leads were competently explored. (Cromer, at p. 904.) In this regard, California

and federal constitutional requirements are the same. (People v. Herrera (2010) 49

Cal.4th 613, 622.)

       In assessing the prosecution's reasonable diligence in locating a missing witness so

as to use that witness's preliminary hearing testimony, we conduct a "twofold inquiry."

(People v. Cromer, supra, 24 Cal.4th at p. 900.) We first determine the historical facts:

"a detailed account of the prosecution's failed efforts to locate the absent witness." (Ibid.)

                                              10
If those facts are in dispute, we deferentially review the trial court's factual findings.

(Ibid.) Second, we determine whether these historical facts amount to due diligence by

the prosecution, which requires application of an objective, constitutionally-based legal

test to the historical facts. (Ibid.; see People v. Sanchez, supra, 63 Cal.4th at p. 440 ["The

reviewing court defers to the trial court's determination of the historical facts if supported

by substantial evidence, but it reviews the trial court's ultimate finding of due diligence

independently, not deferentially"].)

       Where a witness is " 'detained' or 'kept away' by the 'means or procurement' of the

defendant" (Giles v. California (2008) 554 U.S. 353, 359) with the defendant's intent to

cause the witness's unavailability, a common law exception to the bar of the

confrontation clause is applicable. (Giles, at pp. 359-361; see also Davis v. Washington

(2006) 547 U.S. 813, 833 ["one who obtains the absence of a witness by wrongdoing

forfeits the constitutional right to confrontation"].) Under this exception, commonly

known as "forfeiture by wrongdoing," the defendant must affirmatively "engage[] in

conduct designed to prevent the witness from testifying." (Giles, at pp. 360, 365; see

Carlson v. Attorney General of California (9th Cir. 2015) 791 F.3d 1003, 1010.) "Simple

tolerance of, or failure to foil, a third party's previously expressed decision either to skip

town himself rather than testifying or to prevent another witness from appearing does not

'cause' or 'effect' or 'bring about' or 'procure' a witness's absence. Such passive behavior

is therefore not a sufficient reason to foreclose a defendant's Sixth Amendment

confrontation rights at trial." (Carlson, at p. 1010.) The doctrine is not limited to

situations where the defendant murders the witness (see People v. Jones (2012) 207

                                              11
Cal.App.4th 1392, 1399); it applies to acts intended to prevent a witness from testifying

and to acts intended to dissuade a witness from cooperating with law enforcement

authorities. (People v. Banos (2009) 178 Cal.App.4th 483, 501.) The rule is necessary to

avoid "an intolerable incentive for defendants to bribe, intimidate, or even kill witnesses

against them." (Giles, at p. 365; Carlson, at p. 1009.)

C. Contentions

       Winkler contends the prosecution failed to meet its burden to establish it exercised

due diligence in its attempts to procure A.A., T.A. and R.A. for trial. He maintains the

prosecutor was aware that individuals who allege domestic violence often are not

cooperative in pursuing criminal charges against the abuser, and she had reason to believe

A.A. did not want to be involved in prosecuting him, as A.A. specifically told Ossavou

she wanted Winkler removed but did not want Ossavou to call the police. Winkler points

out that during jail calls, A.A. stated she had informed the prosecutor that she was not

coming back after the preliminary hearing, and he argues the prosecutor made no attempt

to maintain contact with A.A. in the four months between the November 2014

preliminary hearing and the trial, which was initially set for January 2015, and then

eventually March 11, 2015. He argues that the "prosecution in this matter failed to

establish that A.A. and her sons were unavailable because it did nothing more than

attempt to confirm A.A.'s presence in Nebraska before seeking to introduce the

transcripts of the preliminary hearing testimony" and it failed to make any attempt to

compel their attendance through the cooperation of Nebraska courts.



                                             12
       The People respond that Winkler forfeited his confrontation clause challenge

because he was responsible for A.A.'s unavailability as evidenced by his jail calls in

which he told her not to show up at trial, and that the prosecutor would "just dismiss this

shit" if she did not attend. They further maintain that the prosecutor exercised reasonable

diligence in attempting to procure A.A. and her children's attendance at trial; that the

evidence showed she did not know A.A. planned to be absent and as a result did not need

to take steps to prevent her from leaving. The People argue that the prosecutor's

obligation to seek assistance from the Nebraska courts did not arise because the

prosecution did not know if A.A. was in Nebraska. Finally, the People argue that error, if

any, in admitting the testimony was harmless beyond a reasonable doubt given the

testimony from Ossavou and others who related what A.A. had told them about the

incident and established the elements of Winkler's offenses.

D. Analysis

       We need not decide whether the prosecutor exercised reasonable or due diligence

in locating A.A. or attempting to obtain her and her children's presence at trial, because

we agree with the People that Winkler forfeited his constitutional right to confrontation

by causing A.A.'s absence.5



5      As we have summarized above, during the hearing on A.A.'s unavailability, the
People discussed Winkler and A.A.'s jail calls, describing how they showed the two had
"worked out [a] plan" for A.A. to absent herself. The People never specifically argued
below, however, that forfeiture by wrongdoing prevented Winkler from challenging
admission of A.A. and her children's preliminary hearing testimony, and the trial court
did not rule on the doctrine. The People argue forfeiture by wrongdoing in their
respondent's brief, and in reply Winkler addresses the issue on the merits, without
                                             13
        The first jail call admitted into evidence from Winkler to A.A. took place on

March 2, 2015, nine days before trial was to start. Winkler, who was using another

inmate's telephone time, told A.A. he had had a professional visit, that the district

attorney was probably expecting to get in contact with A.A., and he asked A.A. if she had

heard from her. A.A. told him she had not, and the following exchange took place:

        "Winkler: Oh okay, cool. Well yeah, the—the main thing is if you can babe, you

know, this is what, this—this is what is needed, that you don't show up at all. That way

she can't . . .

        "[A.A.]: Uh huh.

        "Winkler: . . . she can't push no script. You know what I'm saying, the D.A.

        "[A.A.]: I know.

        [¶] . . . [¶]

        "Winkler: Oh okay. Well this is the reason why I got the uh . . . , the other time,

because that way, you know, we can talk freely without it having being a my [sic]

recorded call . . . ."

        [¶] . . . [¶]

        "Winkler: . . . Yeah so hopefully, you know what I'm saying, well, when, if that

happens, you know what I'm saying they'll just dismiss this shit. You know?

        "[A.A.]: Okay.

challenging the People's ability to raise it for the first time on appeal. In any event,
because the underlying circumstances and content of the jail calls are not in dispute, the
question is one of law that may be raised for the first time on appeal. (See, e.g., People v.
Hines (1997) 15 Cal.4th 997, 1061; Hale v. Morgan (1978) 22 Cal.3d 388, 394; UFITEC,
S.A. v. Carter (1977) 20 Cal.3d 238, 249, fn. 2.)
                                             14
         "Winkler: And then I, well I can come on home and shit and be with my loved

ones, you know.

         "[A.A.] Well I told you, you know the first time, when I did it, I thought it was

going to be easy, but it was not, so . . .

         "Winkler: Right.

         "[A.A.] I don't think I'm going to be doing that shit again.

         "Winkler: Yeah, I hope not, because I mean, shit, if, if, if you did I mean it's like,

everything that I'm talking about happening as far us having family [sic] . . . another

baby, uh, me trying to raise [P.A.] with you and all that shit goes out the window . . .

         "[A.A.]: That's crazy though.

         "Winkler: But there is nothing they can do if you don't show up, but that's the

thing.

         "[A.A.]: Well if I would've known the second time . . .

         "Winkler: Right.

         "[A.A.]: . . . I mean, I already told 'em like, I can, you know, I was like, I told

them like, I don't think I'm gonna be doing this again.

         "Winkler: And what . . .

         "[A.A.]: So . . .

         "Winkler: . . . she say?

         "[A.A.]: She just looked at me, she was like, well we might be looking for you

again, I was like, well good luck, that's what I told her."

         "Winkler: Oh she said . . .

                                                15
         "[A.A.]: They probably will.

         "Winkler: . . . she was going to be looking for you again?

         "[A.A.]: That's what she like, we might need you to come back again. I'm like,

that's it, I'm not coming back.

         "Winkler: Yeah, nah, yeah don't work with them baby we, we got plans, I mean,

and, and if you work with them, then that means we have to go against me and then well,

whatever we planning . . . , it's not going to work, 'cause I'm not going to be able to be

there.

         "[A.A.]: I know."

         The second call admitted into evidence took place on March 11, 2015, the day set

for trial. During that call, Winkler asked A.A. if she had gone "over there" and A.A.

replied that she had not, and that she was going to Nebraska anyway with the children

and then would come back with P.A., since she had missed the court date and someone

might be looking for her. Winkler responded: "Oh okay. Well, . . . spend a couple days

up there, wait you know, wait till this shit is over with, till you hear from me. Right?"

A.A. stated, "Okay."

         We conclude the jail calls constitute substantial evidence that Winkler intended to

convince A.A. to ignore the prosecution's efforts to secure her attendance and to procure

her absence by asking her to evade the district attorney and not show up for trial. When

A.A. told Winkler later that she was going to Nebraska but returning, he implored her to

stay out of California until he contacted her. In her telephone conversations with

Winkler, A.A. expressed a desire to cooperate with him and not testify in court. The

                                              16
United States Supreme Court stated in Giles v. California: " 'The Constitution gives the

accused the right to a trial at which he should be confronted with the witnesses against

him; but if a witness is absent by his own wrongful procurement, he cannot complain if

competent evidence is admitted to supply the place of that which he kept away . . . . [The

Constitution] grants him the privilege of being confronted with the witnesses against him;

but if he voluntarily keeps the witnesses away, he cannot insist on his privilege.' " (Giles

v. California, supra, 554 U.S. at p. 372.)

       II. Sufficiency of Evidence of Misdemeanor Child Endangerment (Count 7)

       Winkler contends his conviction on count 7, the misdemeanor child endangerment

charge as to B.A., must be reversed because the evidence was insufficient to prove his

acts were directed at B.A., witnessed by her, or caused her unjustified mental suffering.

More specifically, Winkler maintains that there was no evidence that B.A., who was then

three years old, was listening to the incident involving his questioning T.A. and R.A.

about engaging in sex or specific sexual activity with their mother, and the evidence

showed B.A. was sleeping at the time he was hitting A.A. in the bathroom. He argues

B.A.'s presence in the room, without more evidence, is insufficient to prove his conduct

inflicted mental suffering upon her.

       "Where, as here, a defendant challenges the sufficiency of the evidence on appeal,

we review the whole record in the light most favorable to the judgment below to

determine whether it discloses substantial evidence—evidence that is reasonable,

credible, and of solid value—such that a reasonable trier of fact could find the defendant

guilty beyond a reasonable doubt. [Citations.] A reviewing court must reverse a

                                             17
conviction where the record provides no discernible support for the verdict even when

viewed in the light most favorable to the judgment below. [Citation.] Nonetheless, it is

the jury, not the reviewing court, that must weigh the evidence, resolve conflicting

inferences, and determine whether the prosecution established guilt beyond a reasonable

doubt. [Citation.] And if the circumstances reasonably justify the trier of fact's findings,

the reviewing court's view that the circumstances might also reasonably be reconciled

with a contrary finding does not warrant reversal of the judgment." (People v. Hubbard

(2016) 63 Cal.4th 378, 392.) The substantial evidence review standard is the same in

cases in which the People rely primarily on circumstantial evidence. (People v. Salazar

(2016) 63 Cal.4th 214, 242.)

       Section 273a defines misdemeanor child abuse. A person is guilty of the crime if

that person, among other things, " 'willfully causes or permits any child to suffer, or

inflicts thereon unjustifiable . . . mental suffering' 'under circumstances or conditions

other than those likely to produce great bodily harm or death.' " (People v. Hamlin

(2009) 170 Cal.App.4th 1412, 1434, citing § 273a, subd. (b); see also People v.

Moussabeck (2007) 157 Cal.App.4th 975, 980.) The statute "encompasses a wide variety

of situations and includes both direct and indirect conduct." (People v. Burton (2006)

143 Cal.App.4th 447, 454.) When a charge of child abuse is based on the mental

suffering resulting from a child being exposed to physical abuse by one parent against the

other, the theory at issue is indirect child abuse. (Hamlin, at p. 1441, citing Burton, at pp.

450-451, 454-455.)



                                             18
       In Burton, the court concluded the defendant's section 273a, subdivision (b)

conviction was supported both legally and factually where the defendant's eight-year-old

son observed the immediate and "horrible, bloody aftermath" (People v. Burton, supra,

143 Cal.App.4th at p. 455) of his father's acts in slashing several deep cuts in his mother's

face. (Id. at p. 451.) The court rejected the defendant's argument that because the attack

was not directed at his son and did not occur in his presence, the section did not apply.

(Id. at pp. 453-455.) The record contained not only evidence that the defendant knew of

the boy's presence, but that following the attack, the boy screamed about having to leave

and tried to put the car in reverse, later wished himself dead in journal entries, and got in

trouble at school. (Id. at p. 455.) The court concluded that "[a] reasonable person would

easily recognize that a child would endure unjustifiable metal suffering by being on the

scene . . . ." (Ibid.)6

       The evidence as to B.A. is certainly not as severe as that in Burton. However,

unlike Burton, it involves evidence from which the jury could conclude B.A. directly

witnessed Winkler's abusive acts toward her brothers R.A. and T.A., and at least heard

Winkler choke her mother. The evidence showed that B.A. was in close proximity on a

bed within a single room apartment at the time, and A.A. testified B.A. was awake and



6      In Hamlin, the court held the defendant's right to parent and right of free
expression was not infringed by his conviction of misdemeanor child abuse based on
"willfully inflict[ing] unjustifiable mental suffering" where the evidence established he
falsely told his children (who were of unspecified age) their grandfather was a child
molester and leader of satanic cult who intended to abduct or kill them, and that the
grandfather and children's mother had molested them in the past. (People v. Hamlin,
supra, 170 Cal.App.4th at pp. 1421, 1442-1444.)
                                             19
"close enough to hear" when Winkler was threatening the boys. The evidence permitted

the jury to conclude that B.A. watched and at least listened while Winkler ordered her

brothers to strip down to their boxer shorts, told them they would get the "whooping of

[their] life" if they lied, questioned them in offensive language as he had his belt raised

and at the ready, and hit T.A. in the leg. After Winkler addressed the boys, he turned his

attention back to A.A. and told her to return to the bathroom, where he accused her of

having sex with her sons, slapped her, and choked her with the belt until she passed out.

This court must presume the existence of every fact the jury could reasonably deduce

from the evidence (People v. Huynh (2012) 212 Cal.App.4th 285, 304), and here, the jury

could reasonably infer that, like T.A., B.A. also heard her mother's pleas and choking

sounds coming from the bathroom. Thus, B.A. was present "at the scene" when

Winkler's abuses of R.A. and T.A., and his attack on A.A., occurred, and as it was a

single room apartment, the jury could readily conclude Winkler knew she was present.

(People v. Burton, supra, 143 Cal.App.4th at p. 455.) Ossavou testified that when A.A.

and the children came to his office, T.A. and B.A. were crying. As the Burton court

observed, children "often witness domestic violence" and such children "suffer adverse

effects similar to victims of direct physical and sexual abuse." (Burton, at p. 456.) There

is no evidence to suggest that because B.A. was three years old she did not appreciate

what was being said or that violent acts were occurring, and we conclude the jury could

reasonably infer from her reaction in the manager's office that she did so. Winkler does

not contest that his acts against A.A. and her sons were willful. The existence of other

evidence that might allow a different conclusion does not affect our substantial evidence

                                             20
review. We conclude the evidence was sufficient to support the jury's finding that

Winkler willfully permitted B.A. to suffer unjustifiable mental suffering.

                     III. Imposition of Concurrent Term on Count 4

       Winkler contends the court's imposition of a concurrent prison term on count 4—

false imprisonment by violence or menace—violated section 654's proscription against

dual punishment for a single act or course of conduct. He maintains that his count 1

(assault by means of force likely to produce great bodily injury), count 3 (injury to

cohabitant resulting in traumatic injury) and count 4 offenses "resulted from a single

indivisible course of conduct with a single objective," that the acts underlying them

occurred within a very short period of time, and the acts were part of a continuous course

of conduct in that according to A.A., he was upset at her for making sexual signs and

looking at another man on the street, directed her into the bathroom, and bound and hit

her all to "confront and punish A.A. for her transgressions." According to Winkler, there

is no substantial evidence to support the court's factual determination that the offenses

involved more than one objective, and the sentence on count 4 must be reversed and

stayed.

       Pointing out the trial court stayed Winkler's six-year sentence on count 1, the

People respond that substantial evidence supports the court's implied finding that Winkler

had multiple independent objectives in falsely imprisoning A.A. and inflicting corporal

injury on her. Specifically, they argue that when Winkler first followed A.A. into the

bathroom, told her to get on her knees and tied her hands and mouth, his objective was to

have greater ease in exercising control over her. They argue the court could infer that

                                             21
Winkler committed these acts to prevent A.A. from escaping, to prevent the children

from observing what he was going to do to their mother, and to humiliate her and make

her feel helpless, and when he subsequently hit A.A., his objective was to punish her for

her conduct. Finally, the People argue that Winkler's false imprisonment of A.A. was not

merely incidental to the infliction of corporal injury, or vice versa, as Winkler could have

inflicted corporal injury on A.A. whether or not she was imprisoned.

       Section 654 provides: "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 statute "generally

precludes multiple punishments for a single physical act that violates different provisions

of law [citation] as well as multiple punishments for an indivisible course of conduct that

violates more than one criminal statute." (People v. Newman (2015) 238 Cal.App.4th

103, 111-112.) " ' "Whether a course of criminal conduct is divisible and therefore gives

rise to more than 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." ' " (People v.

Capistrano (2014) 59 Cal.4th 830, 885; see also People v. Correa (2012) 54 Cal.4th 331,

341.) It is not the temporal proximity of the offenses that determines whether the

transaction is indivisible. (People v. Capistrano, at p. 886.) " ' "The defendant's intent

and objective are factual questions for the trial court; [to permit multiple punishments,]

there must be evidence to support [the] finding the defendant formed a separate intent and

                                             22
objective for each offense for which he was sentenced." ' " (Ibid.) Accordingly, we

review the court's express or implied determination that two crimes were separate,

involving separate objectives, for substantial evidence. (People v. Brents (2012) 53

Cal.4th 599, 618; People v. Blake (1998) 68 Cal.App.4th 509, 512.)

       The trial court implicitly concluded that section 654 authorized separate

punishment for the count 3 and count 4 offenses; it did not explain how Winkler had

independent objectives in inflicting the corporal injuries on A.A. and imprisoning A.A.

with violence or menace. However, the probation report did discuss and explain the

probation officer's section 654 conclusions: "Count 1 relates to the first instance in which

the defendant assaulted the victim in the bathroom by striking her with his belt. Count 4

relates to the second beating in the bathroom, during which the defendant [sic] attempted

to get away but was forcibly detained in the bathroom. Count 3 appears to relate to the

third time the defendant inflicted willful corporal injury of his girlfriend in the bathroom.

[¶] The first two crimes are separated by a period of time when the defendant and the

victim were outside of the bathroom discussing a contract and arguing about the

defendant's accusation that the victim had sex with her sons. The second and third crimes

are separated by another period of time when both Mr. Winkler and [A.A.] were in the

living room, and Mr. Winkler was interrogating the children. In addition, it appears the

first beating was meant as punishment for the victim's alleged sexual signaling to men in

the park, the second as retribution for the victim's failure to sign the contract, and the




                                              23
third in reaction to the children's forced admission to having sex with their mother. As

the three crimes are separated by both time and intent, [section] 654 does not apply."7

       We conclude substantial evidence supports the court's decision not to stay

Winkler's sentence on count 4, which was based on Winkler forcing A.A. into the

bathroom the second time and choking her. The evidence does not establish a single

indivisible course of conduct with a single objective. Rather, it shows Winkler forced

A.A. into the bathroom first after they returned home to beat her with his belt, and then

forced her back into the bathroom again after he interrogated her sons, the second time

choking her with his belt. The incidents were separated by a break in time, during which

A.A. was sitting quietly on the bed with P.A., and the trial court could readily conclude

Winkler harbored independent intents and objectives in first forcing A.A. into the

bathroom to punish her for her supposed signaling to men, and then later to punish her for

purportedly engaging in sex with her children. Though Winkler suggests the prosecutor

impliedly conceded an indivisible course of conduct in her closing arguments to the

jury,8 it was the court's obligation at sentencing to consider section 654, and we look to

the trial evidence as well as the probation officer's analysis, to decide whether substantial

evidence supports the court's implicit finding.


7      Additionally, in discussing the issue of consecutive versus concurrent terms, the
probation report states: "As explained above, the crimes in Counts 1, 3, and 4 had
different objectives and were predominantly independent of each other. They involved
separate acts of violence and the defendant had ample time after each assault to
reconsider his course of action, so they cannot be considered a single period of aberrant
behavior. Thus, consecutive sentencing is justified. However, the overall prison
exposure available with concurrent sentencing appears appropriate, and concurrent
sentencing will be recommended."
                                             24
                                     DISPOSITION

       The judgment is affirmed.




                                                                            O'ROURKE, J.

WE CONCUR:


HALLER, Acting P. J.


AARON, J.




8      In part, during closing arguments the prosecutor described count 3 as based on
Winkler inflicting injuries to A.A.'s head and back, though she stated it "technically
encompass[ed] the entire course of conduct that happened on August 5th by the
defendant." She described count 4 as ordering A.A. into the bathroom and tying her with
the "additional act of violence" of taking "out the belt and then . . . smash[ing] [A.A.'s]
head into that porcelain toilet . . . [causing] visible injuries."
                                            25
