Filed 3/19/14 P. v. Garcia CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039043
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1225794)

             v.

RICHARD JOSEPH GARCIA,

         Defendant and Appellant.



         Defendant Richard Joseph Garcia appeals a judgment of conviction entered
following a jury trial. On appeal, defendant asserts the trial court erred in imposing
concurrent sentences on an attempted criminal threats charge (Pen. Code, §§ 422, 664)1
and a battery charge (§§ 242-243, subd (e)) pursuant to section 654.
                                  STATEMENT OF THE FACTS AND CASE
         This case arises out of a domestic violence incident on February 12, 2012,
involving defendant and his on-again-off-again girlfriend Olivia Collazo. Around
1:00 a.m., defendant went to the house where Ms. Collazo was staying and began
knocking loudly on the door while yelling for Ms. Collazo to come out. Ms. Collazo did
not want to see defendant, but went outside because defendant seemed angry and she was
afraid he would do something to the house.


         1
             All further statutory references are to the Penal Code.
       After Ms. Collazo went outside to talk to defendant, her cell phone rang.
Defendant wanted to know who was calling and accused Ms. Collazo of cheating on him,
even though they were not a couple at the time. Defendant called Ms. Collazo a “bitch”
and demanded to see her phone. When she refused, defendant pulled her to the side of
the house and pushed her to the ground. Defendant struggled to take Ms. Collazo’s
phone, which was in her pocket at the time. Defendant put his hands around
Ms. Collazo’s neck saying, “Why are you doing this?” and “Are you cheating on me?”
Defendant let go of Ms. Collazo’s neck, and reached for his knife, pointing the blade at
her saying, “I’m going to cut your face.” Ms. Collazo responded, “Do it.”
       Defendant continued to demand to see Ms. Collazo’s phone. Ms. Collazo then
threw the phone over the fence. Defendant reached over the fence and grabbed the
phone. Ms. Collazo then started struggling with defendant over the phone. During the
struggle, Ms. Collazo had her hand on the phone and defendant pulled her finger
backward, dislocating it. Defendant immediately gave the phone back to Ms. Collazo
and said he would take her to the hospital. Ms. Collazo refused to go with him, and
defendant eventually left.
       A few hours later, Ms. Collazo went to the hospital, and hospital personnel called
the police. The lower joint on Ms. Collazo’s right middle finger was dislocated, and the
ligaments were stretched. Surgery was required to repair the injury on March 2, 2012.
       Defendant was charged with criminal threats with the personal use of a deadly
weapon, a knife (§§ 422, 12022, subd. (b)(1); count 1), battery in which defendant
personally caused great bodily injury (§§ 242-243, subd. (d), 667, 1192.7; count 2), false
imprisonment (§§ 236-237; count 3), and battery on a person with whom defendant had a
dating relationship as a misdemeanor (§§ 242-243, subd. (e); count 4). The information
also alleged defendant had a strike prior (§§ 667, subds. (b)-(i), 1170.12), and a prior
serious felony conviction (§ 667, subd. (a)).

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       Defendant was convicted after a jury trial of attempted criminal threats as a lesser
included offense to count 1 (§§ 422, 664), and counts 2 and 4. The jury acquitted
defendant of count 3. The court found both allegations of prior convictions to be true.
       The court sentenced defendant to a total term of 11 years in state prison as
follows: six years on count 2, three years on count 1, and one year on count 4, both to run
concurrent to count 2, and five years on the serious felony allegation, consecutive to
count 2.
       Defendant filed a notice of appeal.
                                       DISCUSSION
       The only issue on appeal is whether section 654 requires the concurrent terms for
the attempted criminal threats and the misdemeanor battery be stayed. 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).) Section 654 prohibits separate punishment for
multiple offenses arising from the same act or from a series of acts constituting an
indivisible course of conduct. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.)
       “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.” (Neal v. State of
California (1960) 55 Cal.2d 11, 19, disapproved on other grounds in People v. Correa
(2012) 54 Cal.4th 333, 334.) On the other hand, if the defendant entertained multiple
criminal objectives that were independent and not incidental to each other, he or she
“may be punished for each statutory violation committed in pursuit of each objective”
even though the violations were otherwise part of an indivisible course of conduct.

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(People v. Harrison (1989) 48 Cal.3d 321, 335.) “ ‘The principal inquiry in each case is
whether the defendant’s criminal intent and objective were single or multiple.’
[Citation.] ‘A defendant’s criminal objective is “determined from all the
circumstances.” ’ ” (In re Jose P. (2003) 106 Cal.App.4th 458, 469.)
        Whether section 654 applies in a given case is a question of fact for the trial court,
which is vested with broad latitude in making its determination. (People v. Hutchins
(2001) 90 Cal.App.4th 1308, 1312.) Its findings will not be reversed on appeal if there is
any substantial evidence to support them. (Ibid.; People v. Nichols (1994) 29
Cal.App.4th 1651, 1657.) “We review the trial court’s determination in the light most
favorable to the respondent and presume the existence of every fact the trial court could
reasonably deduce from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139,
1143; see People v. Cleveland (2001) 87 Cal.App.4th 263, 271 [trial court’s finding of
“ ‘separate intents’ ” reviewed for sufficient evidence in light most favorable to the
judgment].)
        Notwithstanding the trial court’s broad latitude in determining the question of
separate intent, the record in this case demonstrates defendant committed the battery with
serious injury, the misdemeanor battery and the attempted criminal threats with a single
intent and objective: defendant was trying to take Ms. Collazo’s phone from her to see
who had just called. Ms. Collazo testified at trial that when defendant pushed her down,
he was trying to grab her phone, and when he put his hands on her neck, and when he
took out his knife, he was also trying to make her give him her phone. Ms. Collazo’s
finger was dislocated while defendant was holding her phone and she was trying to take it
back.
        Because the crimes defendant committed in this case arose from the same course
of conduct and were all for committed for the same objective, section 654 prohibits



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multiple punishment. Therefore, the concurrent sentences imposed on counts 1 and 4
must be stayed pursuant to section 654.
                                        DISPOSITION
      The judgment is modified as follows: the 3 year term imposed as to count 1, and
the 1 year term imposed as to count 4 are stayed pursuant to Penal Code section 654. As
so modified the judgment is affirmed.




                                          ______________________________________
                                                     RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




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