Filed 10/13/15 P. v. Wedel CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F068557
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF137352A)
                   v.

DUSTIN WILLIAM WEDEL,                                                                    OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.

         Michael B. McPartland, under appointment by the Court of Appeal; Williamson
Law Office, and Airene Williamson for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse
Witt, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Defendant Dustin William Wedel was charged with second degree murder, assault
on a child by means of force likely to produce great bodily injury resulting in death, and
willful harm or injury to a child likely to produce great bodily harm or death. (Pen. Code,
§§ 187, subd. (a), 273ab, subd. (a), 273a, subd. (a).)1 Following jury trial, defendant was
convicted of all counts. He was sentenced to 15 years to life for murder, 25 years to life
for assault of a child resulting in death—stayed pursuant to section 654—and a six-year
term for willful cruelty to a child. On appeal, he contends there is insufficient evidence
of his conviction for willful cruelty to a child. And, further, that the trial court should
have stayed imposition of sentence on that count. We disagree and will affirm.
                            SUMMARY OF MATERIAL FACTS
       Stormie Roberts was caring for three-year-old James Fanshier (James), although
she was not his biological mother. Rather, Roberts had dated James’s biological father,
Eavan Fanshier, for a few years, but when the two broke up, Fanshier, who had sole legal
and physical custody of James, thought it best that Roberts continue to care for his son.
Roberts loved James as though he were her own son. James called her “mama.”
       When defendant and Roberts began dating and living together, James was still a
happy, active child. Defendant cared for James while Roberts was at either of her two
jobs. He also cared for Roberts’s nieces and nephews as well when her sister Trishia
Hance was at work. James’s young cousins, Chelsey B. and Brock W. (ages 13 and 11,
respectively, at the time of trial), soon observed defendant physically abuse James while
he was in his care, and Chelsey observed that James developed an odd behavior
whenever he was around defendant. Specifically, Chelsey observed defendant hit James
really hard in the stomach with his fist four or five times; James cried. She also saw
defendant shove his fingers into James’s side and neck; defendant was mad and James
was crying. On yet another occasion, Chelsey saw defendant pick James up off the
ground by one of his wrists; defendant was angry and told James to shut up. James was
crying and Chelsey told defendant to put James down, but he did not do so. Chelsey also
observed defendant force James to stand in a corner while defendant shook James back
and forth by his hoodie, jerking James around. Brock, too, observed defendant sticking

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

                                                 2.
his fingers into James’s ribs on one or two occasions. He also saw defendant pick up
James off the ground by one of his wrists; Brock said that occurred on at least 10
occasions. Further, Brock testified he observed defendant hit James with a belt. Chelsey
noted James began rubbing or tapping his fingers together and was quiet and scared when
defendant was around. Chelsey did not think James liked being alone with defendant.
       An incident occurred a few months prior to James’s death at a friend’s home
where defendant and James were to join others for an outing to a park while Roberts was
at work. Charlee Nord observed defendant pulling on and flicking James’s ears; James
was crying and no one else was present. Nord took James from defendant and settled
him before leaving him alone to go into another room. A short time later, Nord found
James alone with defendant in the living room. When a call came from James’s
biological father, defendant took James to another room; James was crying. Johnale
Waterman and Nord observed bruising to James’s face and ears, and Waterman
photographed the injuries with her phone. Waterman asked defendant what had
happened to James. Defendant told Waterman he had “whooped” James in the bath
because he was crying. When James and defendant had first arrived, James did not have
any injuries. Further, defendant admitted to the women that he hit James in the bath
because he was crying; James didn’t like getting water in his face. Waterman took
photographs of James and sent one to Roberts. Roberts left work and sought out James.
Roberts was aware the other adults present believed defendant was responsible for
James’s injuries, but when Roberts asked James what had happened, he told her he had
fallen on the rocks and sticks in the backyard. Defendant told Roberts the same.
       On January 23, 2011, Roberts got up at 4:00 a.m. and went to work from 5:00 a.m.
to 10:00 a.m. James was ill and a number of family members, including Roberts, had
recently suffered from the flu earlier that week. Roberts asked her mother to take food
over for James because he had not been eating much and she hoped he would enjoy one
of his favorite foods: biscuits and gravy. Glenda Porter delivered the food between 8:00


                                            3.
and 9:00 that morning. She noted James was sitting up on the bed, looking pale;
defendant was lying on the bed. James did not greet her as was his custom. When
Roberts got home from work, defendant advised her James had been vomiting and had
diarrhea. James slept most of the day and complained his stomach hurt, but Roberts
figured he was suffering from the flu. James did not eat the dinner Porter brought by
later, and she and Roberts discussed taking James to urgent care the following morning.
Roberts put James to sleep about the same time she and defendant went to bed. At some
point she heard a noise from James; when defendant turned on the light, Roberts noted
James’s lips were blue and he was not breathing.
       Picking up James, Roberts ran outside the house and ultimately flagged down a
passing sheriff’s deputy. The officer performed cardiopulmonary resuscitation efforts,
but shortly after medical personnel arrived, James was pronounced dead.
       A subsequent autopsy revealed James was covered in bruises, of varying ages, to
his face, chest, arms and legs. There was also an incised wound or sharp force injury to
James’s penis. The internal examination revealed a number of broken ribs, some past
breaks since healed, and others broken completely in half. There was a contusion on
James’s left lung and a fracture to his right radius and ulna. The most significant injury
James suffered was a transected duodenum. This type of injury is caused by an extensive
amount of force and could be caused by a blow to the abdomen. The duodenal injury
caused a spill of the gastric contents into James’s abdominal cavity; peritonitis set in and
caused multiple organ failure within a six- to 12-hour period. It would have been
extremely painful; symptoms would include vomiting, diarrhea, fever or chills, lethargy,
and shock. James’s death was caused by multiple blunt force injuries and it was ruled a
homicide.




                                             4.
                                       DISCUSSION
1.     The Evidence Was Sufficient
       Defendant contends the evidence is insufficient to support his conviction for
willful cruelty to a child because it is only circumstantial and, thus, because there is more
than one reasonable interpretation of that evidence his conviction must be reversed. The
People maintain there was both direct and circumstantial evidence to support defendant’s
conviction on count 3. We agree with the People.
       A.     The Law
       When considering a challenge to the sufficiency of the evidence to support a
judgment, we review the record in the light most favorable to the judgment and decide
whether it contains substantial evidence from which the finder of fact could make the
necessary finding beyond a reasonable doubt. We presume every inference in support of
the judgment that the finder of fact could reasonably have made. We do not reweigh the
evidence or reevaluate witness credibility. We cannot reverse the judgment merely
because the evidence could be reconciled with a contrary finding. (People v. D’Arcy
(2010) 48 Cal.4th 257, 293.)
       B.     Our Analysis
       Here, the jury was instructed that “[d]irect evidence is evidence that directly
proves a fact. It is evidence which by itself, if found to be true, establishes that fact.”
(CALJIC No. 2.00.) As we stated in People v. Ibarra (2007) 156 Cal.App.4th 1174,
1187: “Circumstantial evidence involves a two-step process—first, the parties present
evidence and, second, the jury decides which reasonable inference or inferences, if any,
to draw from the evidence—but direct evidence stands on its own. So as to direct
evidence no need ever arises to decide if an opposing inference suggests innocence.
[Citation.]” Further, eyewitness evidence is direct evidence. (People v. Baldwin (1979)
97 Cal.App.3d 396, 401.) In this case, Chelsey B., Brock W., and Charlee Nord provided



                                              5.
eyewitness testimony concerning a number of instances of child abuse inflicted upon
James by defendant. Hence, their testimony is direct evidence.
       More specifically, Chelsey testified to observing defendant forcefully punch or hit
James in the stomach four or five times. Chelsey also observed defendant shoving his
fingers into James’s side and neck, causing the child to cry. Brock observed the same
behavior. Additionally, Chelsey observed defendant pulling James up off the ground by
his wrist, causing James to cry and Chelsey to tell defendant to put James down. Brock
testified to observing the same behavior by defendant on at least 10 occasions.
Moreover, Chelsey observed defendant shake James by an article of clothing, and James
was jerked back and forth by defendant while he was made to stand in a corner. Finally,
Brock once observed defendant hit James with a belt. Nord observed defendant pulling
on and flicking James’s ears.
       Significantly, all of these injuries occurred prior to January 23, 2011, and within
the time period alleged in the information. The testimony of a single witness—unless
physically impossible or inherently improbable—is sufficient for a conviction. (Evid.
Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.) There is nothing either
physically impossible or inherently improbable about either Chelsey, Brock, or Nord’s
testimony. The trier of fact makes credibility determinations and resolves factual
disputes. (People v. Estrella (1995) 31 Cal.App.4th 716, 724–725.) We will not
substitute our evaluation of a witness’s credibility for that of the fact finder. (People v.
Vazquez (2009) 178 Cal.App.4th 347, 352.) Clearly, the jury believed the testimony
proffered by these eyewitnesses, and we will not reevaluate their credibility on appeal.
       Notably, the acts described by Chelsey and Brock comport with the autopsy
findings, to wit: acute, subacute, and chronic injuries inflicted upon James. There was
extensive bruising to his face, chest, arms, and legs. Several of James’s ribs were
completely broken, and others had healed from earlier injury. James’s right wrist was




                                              6.
fractured and had been injured previously. There were also abrasions found on James’s
left ear during the external examination that were consistent with Nord’s testimony.
       In sum, we have reviewed this record in its entirety and we find there is substantial
evidence to support the jury’s finding of defendant’s guilt as to the infliction of willful
cruelty to a child, or felony child abuse. (People v. D’Arcy, supra, 48 Cal.4th at p. 293.)
2.     Section 654
       Defendant next contends the trial court erred in sentencing him to a six-year term
on count 3, felony child abuse. Specifically, he argues he was convicted of murder,
assault on a child resulting in death, and felony child abuse based upon the single act of
assaulting James with force likely to produce great bodily injury or death on the morning
of January 23, 2011. Even if all three convictions were not based on the same act, he
argues all were committed pursuant to a single intent and objective. Hence, the sentence
should have been stayed. The People assert the trial court properly imposed sentence on
count 3, and section 654 is not applicable because there were separate acts of abuse
inflicted at different times, meaning the abuse was divisible in time. We conclude section
654 does not preclude imposition of the six-year term imposed below.
       A.     The Law
       Section 654, subdivision (a) provides as follows:

       “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. An acquittal or
       conviction and sentence under any one bars a prosecution for the same act
       or omission under any other.”
The statute “precludes multiple punishment for a single act or omission, or an indivisible
course of conduct. [Citations.]” (People v. Deloza (1998) 18 Cal.4th 585, 591.) If a
defendant is convicted under two statutes for one act or indivisible course of conduct,
section 654 requires the sentence for one conviction be imposed and the other imposed
and then stayed. (Deloza, at pp. 591–592.) “Section 654 does not allow any multiple

                                              7.
punishment, including either concurrent or consecutive sentences. [Citation.]” (Id. at p.
592.) The correct procedure is to impose a sentence for each count and enhancement and
then to stay execution of sentence as necessary to comply with section 654. (People v.
Duff (2010) 50 Cal.4th 787, 795–796.) The statute serves the purpose of preventing
punishment that is not commensurate with a defendant’s criminal liability. (People v.
Hall (2000) 83 Cal.App.4th 1084, 1088, disapproved on other grounds in People v.
Correa (2012) 54 Cal.4th 331, 343-344.)
       “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,
supra, 54 Cal.4th at p. 333; see People v. Hairston (2009) 174 Cal.App.4th 231, 240.)

              “If [a defendant] entertained multiple criminal objectives which
       were independent of and not merely incidental to each other, he may be
       punished 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.” (People v. Beamon (1973) 8
       Cal.3d 625, 639.)
       B.        The Sentence Imposed
       Following consideration of the probation officer’s report, the People’s sentencing
statement, and the parties’ arguments, the court stated as follows:

                 “THE COURT: … I am going to make the following findings and
       orders:

                 “With regard to circumstances in mitigation, I find none.

              “Regarding circumstances in aggravation, I find the following:
       No. 1, the defendant’s prior convictions as an adult and sustained petitions
       in juvenile delinquency proceedings are numerous. No. 2, the defendant’s
       prior performance on juvenile probation, deferred entry of judgment, …
       Section 1210.1 probation, and misdemeanor probation was unsatisfactory in
       that he continued to reoffend and failed to abide by terms and conditions.

                                               8.
No. 3, the defendant had two active misdemeanor warrants for his arrest
when he committed the instant offense. That’s per [California Rules of
Court,] Rule 4.408. And, finally, No. 4, the defendant took advantage of a
position of trust or confidence to commit the offense, under again Rule
4.421.

      “With regard to sentencing options, I find the defendant qualifies for
punishment in CDCR based on the current offenses.

        “I find the defendant to be statutorily ineligible for a grant of felony
probation except in unusual circumstances per … Section 1203 Subdivision
(e)(3) in that he willfully inflicted great bodily injury ultimately resulting in
the victim’s death. Upon review of Rule of Court 4.413, the Court does not
find this case to be unusual for that purpose.

       “I also find the defendant to be clearly an unsuitable candidate for a
grant of felony probation given the serious circumstances in this case. He
has shown through his actions that he is an extreme danger to the
community, and a prison sentence is justified.

       “With regard to the sentencing justification, I find the punishment as
to Count 1 is an indeterminate term of 15 years to life. I find the
punishment as to Count 2 is an indeterminate term of 25 years to life. I
agree that Count 2 should be the selected term carrying the greatest
punishment.

        “I am going to find that the punishment as to Count 1 should be
stayed pursuant to … Section 654 in that counts 1 and 2 involve the same
set of operative facts.

       “I do not find that Count 3 should be stayed under … Section 654. I
do not find it involves the same set of operative facts as contained in Count
2.

       “And I also note that Count 3 should be consecutive per Rule of
Court 4.425 in that the crime in Count 3 involves separate acts and at
different times.

        “As to Count 3 I find that the aggravating factors preponderate,
justifying imposition of the upper term. [¶] … [¶]

        “Count 3. Probation is denied. Defendant is sentenced to the
Department of Corrections for the upper term of six years. The Court finds
that the term should be served consecutive to the sentence imposed in
Count 2.…


                                       9.
             “So the defendant is sentenced to a total term of 25 years to life plus
       an additional six years.” (Italics added.)
       C.      Our Analysis
       Section 654 does not bar imposition of the upper term of six years on count 3 in
this matter, hence, the trial court did not err.
       Initially, we note the record plainly reveals the trial court found the abuse alleged
in counts 1 and 2 was separate and distinct from that alleged in count 3.
       Moreover, as to count 3, the evidence was sufficient to support the trial court’s
implicit finding of multiple offenses, independent of, and not merely incidental to, each
other. Based upon the testimony given, and in particular given by Chelsey and Brock, it
was reasonable for the court to conclude defendant committed separate offenses between
the period of November 2010 and January 2011, excluding January 23, 2011. Those
offenses were independent of one another, even though the violations shared common
acts or were parts of an otherwise indivisible course of conduct. (People v. Green (1996)
50 Cal.App.4th 1076, 1084-1085.) Defendant was observed to hurt and abuse James on
numerous occasions, sometimes punching the three-year-old child hard in the stomach,
other times pulling him up off the ground by his wrist, and yet other times shoving or
poking his fingers into James’s ribs or side, or neck. All of these actions caused James to
cry.
       It was reasonable to conclude that not all of the incidents of child abuse committed
over about three months by defendant constituted an otherwise indivisible course of
conduct incidental to the violent act that killed James on January 23, 2011. There was
sufficient evidence that, before James’s death, defendant committed separate,
independent acts of child abuse not intertwined with the conduct leading to James’s death
on January 23, 2011. Thus, there was no violation of section 654 in imposing
consecutive sentences for second degree murder and felony child abuse as separate,
divisible offenses.



                                               10.
      Finally, we briefly note and reject defendant’s argument that his jury trial rights
were violated pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466. Similar
arguments have already been decided against defendant. (People v. Retanan (2007) 154
Cal.App.4th 1219, 1229 [weight of California authority holds Apprendi rule is not
applicable to decisions made under § 654]; People v. Cleveland (2001) 87 Cal.App.4th
263, 269–271 [§ 654 is sentencing reduction statute, so Apprendi’s rationale does not
apply]; People v. Solis (2001) 90 Cal.App.4th 1002, 1022 [same].)
                                     DISPOSITION
      The judgment is affirmed.

                                                         ___________________________
                                                                             PEÑA, J.
WE CONCUR:


 ________________________________
LEVY, Acting P.J.


 ________________________________
KANE, J.




                                           11.
