Filed 4/26/16 P. v. Baganha 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F069626
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF152643A)
                   v.

DAVID BAGANHA,                                                                           OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Gary T.
Friedman, Judge.

         Monique Q. Boldin, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-


         *Before    Levy, Acting P.J., Poochigian, J. and Peña, J.
                                        INTRODUCTION
         Defendant David Baganha was convicted by a jury in count 1 of willful infliction
of corporal injury, a violation of Penal Code1 section 273.5, subdivision (a), and in count
2 of criminal threats, a violation of section 422. The trial court imposed a sentence of
three years for the count 1 offense and a consecutive eight months for the count 2
offense. Baganha contends the imposition of a consecutive term for the count 2 offense
violates section 654. We disagree and affirm.
                        FACTUAL AND PROCEDURAL SUMMARY
         Baganha and the victim, C.C., knew each other from childhood and had lived
together for 16 years. In 2012, the relationship began to deteriorate. The evening of
January 9, 2014, C.C. was watching television when Baganha came over, lifted her up,
and threw her to the other side of the couch. C.C. landed on her back. Baganha put a
pillow over her face and began calling her names, including “fucking whore,” and
accusing her of “screwing everybody” and being involved in a “sex club.”
         C.C. kept trying to push the pillow off her face because it was getting hard for her
to breathe. Baganha “adjusted himself” to get a better “hold on the pillow.” When he did
so, C.C. kicked him between the legs and scratched his face. C.C. rolled off the couch
and landed on her stomach. Baganha put his knee on her back, pushed the pillow under
her face, and held her head down. C.C. estimated that during the entire time of the
assault, Baganha held a pillow to her face eight or nine times.
         Baganha told C.C., “[B]itch, you’re gonna die tonight, and they’re going to find
your body in the Kern River.” Baganha shoved a paper tablet into C.C.’s hands and told
her to write down a “confession of infidelity.” Baganha hovered over C.C. while he
dictated her “confession” and she was writing; C.C. was unable to get away from him.
C.C. was scared and did whatever Baganha asked her to do. The “confession” was five
pages.

         1References   to code sections are to the Penal Code unless otherwise specified.

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        After C.C. finished writing, Baganha told her to call her children and read her
“confession” to them “because he wanted them to know what kind of mother they had.”
When she reached her son on the phone, C.C. started crying and began reading the
“confession” from the tablet. Her son asked if she was okay and indicated she was
“being crazy.”
        Her son indicated he had to hang up, and a few minutes later C.C.’s daughter
called. The daughter stated her brother had called her and he was “calling the police.
They’re going to be there soon.” C.C.’s daughter told her to keep reading from the tablet.
“She goes the cops are on their way. The cops are on their way. Just keep reading it,
mom.”
        C.C. was still on the phone with her daughter when the doorbell rang. Baganha
went to the front door and told C.C. “don’t make this hard on me ’cause I’ll get even.”
C.C. was scared and just wanted to get to the door and let the officers inside. When the
officers arrived, Baganha was arrested.
        C.C. estimated the entire episode took place over about one hour to one and a half
hours. As a result of Baganha’s actions, she suffered scrapes to her face, a cut on her
cheek, carpet burns on her skin, and her face was puffy and swollen afterwards.
        On February 25, 2014, Baganha was charged in count 1 with willful infliction of
corporal injury and in count 2 with criminal threats. Baganha pled not guilty. A jury was
empaneled on April 29, 2014.
        At trial, Baganha testified on his own behalf. He claimed C.C. became very angry
when he accused her of sleeping with other men and she started swinging at him with her
fists. Baganha claimed C.C. hit him three or four times before he was able to wrap his
arms around her and calm her down. He claimed C.C. told him about a “swingers get-
together” and he asked C.C. to write down everything she had just talked about.
        On May 5, 2014, the jury found Baganha guilty as charged. The probation report
noted Baganha was on misdemeanor probation when the incident occurred. The


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probation report recommended imposition of the low term for the count 1 offense. The
probation report also stated “it appears the defendant’s sole intent was to have [C.C.]
admit to acts of infidelity” and concluded any term imposed for count 2 should be stayed
pursuant to section 654.
       The People filed a sentencing brief. In it, they argued Baganha harbored two
separate intents when committing the two offenses, and section 654 did not apply. The
People also asked the trial court to impose the aggravated term for the count 1 offense.
Baganha filed a sentencing brief, arguing he should be granted felony probation with no
prison term and that section 654 applied to stay imposition of any term for the count 2
offense.
       The trial court at sentencing opined that Baganha’s actions were “callous and
disturbing.” The trial court found Baganha “had ample time to reflect” and concluded
section 654 did not apply. Consecutive terms were imposed for the counts; three years
for the count 1 offense and a consecutive eight months, which is one-third the midterm,
for the count 2 offense.
       Baganha filed a notice of appeal on June 26, 2014.
                                       DISCUSSION
       Baganha contends the trial court erred in imposing consecutive sentences and that
section 654 applies. He is mistaken.
Standard of Review
       The defendant’s intent and objective are factual questions for the trial court in a
section 654 analysis. (People v. Coleman (1989) 48 Cal.3d 112, 162.) We review the
trial court’s factual findings in imposing multiple punishment for substantial evidence,
that is, evidence which is reasonable, credible, and of solid value. (People v. Johnson
(1980) 26 Cal.3d 557, 578 [defining substantial evidence]; People v. Blake (1998) 68
Cal.App.4th 509, 512.) We view the record in the light most favorable to the trial court’s




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findings 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.)
       It is judicial action and not judicial reasoning that is the subject of appellate
review. (People v. Dawkins (2014) 230 Cal.App.4th 991, 1004.) Regardless of the trial
court’s rationale for imposing consecutive sentences, we determine whether such action
was legally correct. (Ibid.)
Section 654
       Section 654, subdivision (a) provides that “[a]n act or omission that is punishable
in different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” “The purpose of section 654 is to
ensure that a defendant’s punishment is commensurate with his culpability and that he is
not punished more than once for what is essentially one criminal act.” (People v. Kwok
(1998) 63 Cal.App.4th 1236, 1252.)
       The section 654 prohibition against double punishment applies to a single act or to
a course of conduct which constitutes an indivisible transaction. (People v. Latimer
(1993) 5 Cal.4th 1203, 1207-1209.) “[I]f the evidence discloses that a defendant
entertained multiple criminal objectives which were independent of and not merely
incidental to each other, he may be punished for the independent violations committed in
pursuit of each objective even though the violations were parts of an otherwise indivisible
course of conduct.” (People v. Perez (1979) 23 Cal.3d 545, 551.) In addition, if the
defendant commits separate and distinct acts with the same objective and the acts were
not incidental to another offense or the means by which another offense was committed,
section 654 does not preclude separate punishment. (People v. Kwok, supra, 63
Cal.App.4th at pp. 1252-1257.)




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Analysis
       Here, Baganha committed two distinct crimes—willful infliction of corporal injury
and criminal threats. These crimes had distinct objectives; one to physically hurt the
victim, the other to threaten her.
       One need not inflict physical harm on a victim or engage in a course of conduct to
commit a criminal threat; a criminal threat occurs from one discrete act. (People v.
Maciel (2003) 113 Cal.App.4th 679, 682.) Baganha committed the count 2 criminal
threat offense when he threatened to kill C.C. and put her body in the Kern River.
       Baganha committed willful infliction of corporal injury when he repeatedly held
C.C. down and placed a pillow over her face, causing her to have difficulty breathing and
to suffer a cut and scrapes to her face. The threat was not a part of the infliction of
physical injury. The People made this distinction in closing argument, noting the act
constituting count 2 was designed to frighten and cause sustained fear; the course of
conduct constituting count 1 was designed to inflict physical pain.
       Baganha committed separate and distinct acts that were not the means by which
another offense was committed, thus section 654 does not preclude separate punishment.
(People v. Kwok, supra, 63 Cal.App.4th at pp. 1252-1257.)
                                      DISPOSITION
       The judgment is affirmed.




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