Filed 7/17/14 P. v. Rodriguez CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,

         Plaintiff and Respondent,                                                    F066666

                   v.                                                    (Super. Ct. No. 12CM2659)

MANUEL DEJESUS RODRIGUEZ,                                                         OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kings County. Thomas
DeSantos, Judge.
         Eloy I. Trujillo, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Levy, Acting P.J., Gomes, J., and Detjen, J.
       A jury convicted appellant, Manuel Dejesus Rodriguez, of individual counts of
infliction of corporal injury upon a cohabitant (Pen. Code, § 273.5, subd. (a);1 count 2),
false imprisonment (§ 236; count 3) and making criminal threats (§ 422; count 7), and
two counts of assault with a firearm (§ 245, subd. (a)(2); counts 4, 8). The jury also
found true enhancement allegations that in committing the count 2, 3, 4 and 8 offenses,
appellant personally used a firearm within the meaning of section 12022.5, subd. (a). The
court imposed an aggregate prison term of 19 years consisting of the following: on
count 2, the four-year upper term plus 10 years for the accompanying firearm use
enhancement; on count 3, eight months on the substantive offense plus 16 months on the
accompanying enhancement; on count 7, eight months; and on count 8, one year on the
substantive offense plus one year four months on the accompanying enhancement. On
count 4, the court imposed, and stayed pursuant to section 654, the four-year upper term
on the substantive offense plus 10 years on the enhancement.
       On appeal, appellant contends the imposition of consecutive sentences on counts 3
(false imprisonment), 7 (criminal threats) and 8 (assault with a firearm) violated the
section 654 proscription against multiple punishment. We reject appellant’s challenges to
the terms imposed on counts 7 and 8, agree with appellant that section 654 bars
imposition of sentence on count 3, modify the judgment accordingly, and affirm the
judgment as modified.
                                          FACTS
       Veronica Rios met appellant in 2011, and at some point thereafter appellant
moved into Rios’s apartment where she lived with her two children.2 Appellant was



1      All statutory references are to the Penal Code.
2      Our factual summary is taken from Rios’s testimony.


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“with” Rios, but he “would go and come back,” leaving for one or two days before
returning again.
       On July 23, 2012, at approximately 2:00 or 3:00 a.m., while Rios and appellant
were in the living room of her apartment, appellant began “checking [Rios’s] phone” and
asking her “who [she] was talking to[.]” Appellant got very angry and when Rios went
into the bedroom she shared with appellant, appellant came in, told her she had to tell him
who she had been talking to, and pulled out a gun that he had in the waist area of his
pants. Rios was sitting on the floor. As appellant continued to demand Rios tell him who
she had been talking to, he pointed the gun at her neck, mouth, forehead and stomach.
He also put the gun in her mouth, touched her stomach and forehead with the gun and,
with a twisting motion, pressed the gun into her neck. At some point, with the gun in one
hand he struck her in the head with his other hand, and at some point thereafter he kicked
her two or three times in the stomach.
       Appellant told Rios that “if [she] left he already knew who he could pay to do
something to [her].” He also said “if [she] left he knew who he was going to get to do
something.” Rios understood the latter statement as a threat to hurt her children.
Although appellant did not “exactly” say he would harm her children, Rios “understood
[him to mean] something like that.”
       After appellant kicked Rios in the stomach, he went into the kitchen, but before
leaving the bedroom he told Rios to take her clothes off. Thereafter, Rios wrapped
herself in a towel, left the bedroom and began walking in the direction of the living room
to get her phone. Appellant, however, came out of the kitchen and, holding a gun or a
knife—Rios could not recall which—pushed her back into the bedroom and “threw [her]
on the bed.”
       While in the kitchen, appellant had acquired a “kitchen knife,” which he pointed at
Rios’s vagina, touching her skin with the knife, as Rios, the towel having come

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unwrapped, lay naked on the bed. As he pointed the knife at Rios, he told her she “was
going to see what happens to women who are with other men.” At some point thereafter
he put the gun on a night stand close to the bed, tossed the knife away, and the two had
sexual intercourse. Rios had sex with appellant because she was “afraid he would get the
gun again or something.”
       Rios did not attempt to leave the apartment during the night because her children
were in the apartment. The next morning, Rios was getting ready to go to work and was
drinking coffee when appellant came into the kitchen and asked her why she was “sad.”
Rios responded that he knew the answer to that question, and appellant said “he didn’t
want [Rios] to tell anyone” “because he had other people [and] that even if he wasn’t
there he would harm [Rios] or [her] family.”
                                      DISCUSSION
       Appellant contends section 654 precludes imposition of sentence on each of
counts 3, 7 and 8 because each of those offenses was committed as part of a “continuous
course of domestic violence against a single victim.”
Legal Background
       Section 654, subdivision (a) provides, in relevant part: “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.” However,
although under the plain language of the statute multiple punishment may not be imposed
for a single “act or omission” (§ 654, subd. (a)), “[c]ase law has expanded the meaning of
section 654 to apply to more than one criminal act when there was a course of conduct
that violates more than one statute but nevertheless constitutes an indivisible transaction.”
(People v. Hairston (2009) 174 Cal.App.4th 231, 240.)



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       Whether a course of conduct consisting of multiple acts constitutes an indivisible
transaction depends on the “defendant’s intent and objective ....” (People v. Harrison
(1989) 48 Cal.3d 321, 335.) “[I]f all of the offenses were merely incidental to, or were
the means of accomplishing or facilitating one objective, defendant may be found to have
harbored a single intent and therefore may be punished only once.” (Ibid.) On the other
hand, “[i]f [the 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.)
       Our Supreme Court has “often said that the purpose of section 654 ‘is to insure
that a defendant’s punishment will be commensurate with his culpability’” (People v.
Latimer (1993) 5 Cal.4th 1203, 1211 (Latimer)), and “decisions ... have refined and
limited application of the ‘one intent and objective’ test, in part because of concerns that
the test often defeats its own purpose because it does not necessarily ensure that a
defendant’s punishment will be commensurate with his culpability.” (People v. Kwok
(1998) 63 Cal.App.4th 1236, 1253 (Kwok)). Thus, as our Supreme Court noted in
Latimer, cases decided since the intent-and-objective rule was announced in Neal v. State
of California (1960) 55 Cal.2d 11 have “limited the rule’s application in various ways,”
including, in some cases, by “narrowly interpret[ing] the length of time the defendant had
a specific objective, and thereby found similar but consecutive objectives permitting
multiple punishment.” (Latimer, at pp. 1211-1212.) These cases include People v. Louie
(2012) 203 Cal.App.4th 388, where the court rejected a section 654-based challenge to
the imposition of sentence on multiple offenses, stating: “[W]here a course of conduct is
divisible in time it may give rise to multiple punishment even if the acts are directive to
one objective. [Citation.] If the separation in time afforded defendants an opportunity to

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reflect and to renew their intent before committing the next crime, a new and separate
crime is committed.” (People v. Louie, supra, at p. 399.)
       “A trial court’s express or implied determination that two crimes were separate,
involving separate objectives, must be upheld on appeal if supported by substantial
evidence.” (People v. Brents (2012) 53 Cal.4th 599, 618.) “We review the trial court’s
findings ‘in a light most favorable to the respondent and presume in support of the order
the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]’ [Citation.]” (People v. Green (1996) 50 Cal.App.4th 1076, 1085.)
Count 3 – False Imprisonment
       As indicated above, appellant contends the acts underlying his false imprisonment
conviction were part and parcel of the same conduct underlying his count 2 conviction of
infliction of corporal injury upon a cohabitant. He bases this contention, in turn, on the
claim that he committed the acts underlying his false imprisonment conviction during the
initial episode in the bedroom—before he left the room and went to the kitchen—during
which he assaulted Rios.
       The court, however, made an express finding that appellant committed the acts
underlying the false imprisonment conviction during the second episode in the bedroom,
and that appellant could be sentenced consecutively for this “separate act.” The People
agree, asserting that “The trial court can base its section 654 decision on any of the facts
adduced [at] trial ….” Thus, the People argue, appellant committed the offense of false
imprisonment after he “had had the opportunity to reflect and renew his intent after the
commission of count two,” and therefore imposition of sentence on both counts 2 and 3
was not barred by section 654.
       Appellant bases his argument that the relevant acts of false imprisonment, for
section 654 purposes, occurred not during the second episode in the bedroom, but in the
first, on the fact that, at trial, the prosecution’s theory of appellant’s guilt, as presented by

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the prosecutor in closing argument, was that the false imprisonment occurred during the
first episode.3 In our view, appellant is correct.
       People v. Siko (1988) 45 Cal.3d 820 (Siko) is instructive. The issue in that case
was whether the defendant was properly subjected to separate punishment for a lewd and
lascivious conduct conviction based on a single incident that also provided the basis for
his convictions of forcible rape and sodomy. In arguing that multiple punishment did not
run afoul of section 654, the People pointed to evidence purporting to demonstrate that
the defendant committed lewd acts other than the rape and sodomy. Our Supreme Court
rejected this claim and found that the sentence had to be stayed in accordance with
section 654, reasoning that “[t]here is no showing that the lewd-conduct count was
understood in this fashion at trial. Indeed, a review of the record demonstrates the
contrary.” (Siko, at p. 826.) The court noted that “the charging instrument and the
verdict both identify the lewd conduct as consisting of the rape and the sodomy rather
than any other act. Nor did anything in the prosecutor’s closing argument or in the
court’s instructions suggest any different emphasis.” (Ibid.)
       Similarly, in People v. Bradley (2003) 111 Cal.App.4th 765, 770 (Bradley), the
defendant was found guilty of robbery and attempted murder. The latter conviction was
based on the prosecution’s theory that the defendant was guilty as an aider and abettor in
that the crime was a natural and probable consequence of the robbery. In concluding that
multiple punishment was barred under section 654, the court reasoned: “In this case, the
jury could have been offered the opportunity to find appellant indeed entertained a
specific intent to attempt the robbery victim’s murder. But presumably recognizing this


3       The prosecutor argued: “Holding a gun to someone, putting it to their neck, to
their head, forehead, stomach, that’s menace. That’s violent. You’ve got the violence,
and he’s kicking and he’s hitting her. That’s Count 3. That will be false imprisonment,
true finding on the gun, if you find he did personally use that gun, which he did.”


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was not a viable option, the prosecutor elected not to submit that possibility to the jury.
So the jurors obviously made no such finding. Instead the jurors predicated appellant’s
guilt of the attempted murder count solely on the theory the prosecution tendered, a
theory only requiring appellant to entertain a single objective─to rob that victim. [¶] In
our view, the trial court cannot countermand the jury and make the contrary finding
appellant in fact personally had both objectives.” (Bradley, at p. 770.)
       In People v. McCoy (2012) 208 Cal.App.4th 1333, upon which the People rely, the
court summarized the applicable rule as follows: “[A] trial court may base its decision
under section 654 on any of the facts that are in evidence at trial, without regard to the
verdicts,” but only “in the absence of some circumstance ‘foreclosing’ its sentencing
discretion (as in Siko and Bradley) ….” (Id. at p. 1340.)
       Here, given the prosecutor’s closing argument, and the absence of any contrary
indications in the record, it is evident it was understood by the jury that the charge of
false imprisonment was based on appellant’s conduct during the first episode in the
bedroom. As in Bradley, the sentencing court “cannot countermand the jury and make
the contrary finding ….” (Bradley, supra, 111 Cal.App.4th at p. 770.) Here, the court
did exactly that, accepting the prosecutor’s argument and finding that appellant’s conduct
during the second bedroom episode constituted a “separate act” for which the sentence
“should run consecutively.” And as the People do not dispute, the acts that constituted
the false imprisonment in the first episode were the same acts as those underlying the
count 2 conviction of infliction of corporal injury on a cohabitant.4 Therefore, imposition
of sentence on the count 3 false imprisonment and the accompanying firearm use
enhancement violated section 654. Under these circumstances, the proper appellate
response is to “‘stay the sentence on the lesser offenses while permitting execution of the

4      See footnote 3, ante, page 7.


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greater offense consistent with the intent of the sentencing court.’” (People v. Pitts
(1990) 223 Cal.App.3d 1547, 1560.) Accordingly, we will stay execution of sentence on
count 3 and the accompanying enhancement.
Count 7 – Criminal Threats
       As indicated above, Rios testified she understood appellant’s threats to be directed
at both her and her children. In closing argument, the prosecutor argued, “Count 7 is
[section] 422 criminal threats…. [T]his is the threatening to kill her. This is the
threatening to hurt her kids.” The court found: “Count 7 is a separate act and just as
egregious [as the count 3 false imprisonment]. Threatening children is … despicable
conduct, this Court feels, to get someone to do their wishes. Again, this should run
consecutively ….”
       As best we can determine, appellant argues that the court found appellant
threatened to harm Rios’s children, but that the evidence does not support this finding.
The evidence, appellant contends, supports the finding that appellant threatened Rios
only. And because the evidence thus shows the threat was made “during the first act of
domestic violence to a single victim” (italics added), appellant argues further, imposition
of sentence on count 7 violated section 654. We disagree.
       First, we reject appellant’s reading of the court’s remarks as a finding that
appellant’s threat was directed at Rios’s children but not at Rios. Although the court
made reference only to appellant “threatening [to hurt Rios’s] children,” Rios testified
she understood the threats to be directed at both her and her children, and the prosecutor
argued that appellant threatened both Rios and her children. Nothing in the court’s
remarks preclude a finding, and we interpret the court’s remarks, as including an implied




                                              9
finding that appellant threatened to harm Rios as well as her children during the first
episode in the bedroom.5
       Further, we reject appellant’s contention that section 654 precludes sentence on
count 7 because that offense “related to the continuous course of domestic violence
against a single victim.” The court reasonably could have found (1) that appellant
committed multiple volitional acts during the first episode in the bedroom, some of
which—such as striking Rios—formed the basis of appellant’s conviction of infliction of
corporal injury upon Rios, and some of which—such as appellant’s statement to Rios that
he “knew who he could pay to do something to [her]”—constituted criminal threats in
violation of section 422, and (2) that between these acts appellant had time to reflect.
(Cf. People v. Trotter (1992) 7 Cal.App.4th 363, 368 [section 654 did not preclude
punishment for two assault counts based on two gunshots fired within one minute of each
other].) Therefore, section 654 did not bar the imposition of a consecutive term on
count 7.
Count 8 – Assault With a Firearm
       The court found as follows: “After entering the bedroom the second time,
defendant forced the victim onto the bed showing the victim the firearm again as alleged
in Count 8. This is also a separate act and should run consecutively.”
       Appellant argues that the evidence shows that in committing all the offenses in the
instant case, including the count 8 offense—the assault with a firearm during the second
episode in the bedroom—he acted with a “single objective and intent,” viz., “domestic


5      Section 422 refers to threats that cause the person to whom the threat is
communicated “to be in sustained fear for his or her own safety or for his or her
immediate family’s safety ….” (§ 422, subd. (a)). We assume without deciding that, as
appellant argues, the evidence was insufficient to establish Rios was placed in sustained
fear for her children’s safety.


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violence.” Therefore, he argues, imposition of sentence on count 8 violated section 654.
We disagree.
         As with appellant’s criminal threats, the count 8 assault was one of a series of
volitional acts, separated by time, giving appellant time to reflect. Thus, however the
intent and objective for such acts is characterized, section 654 does not bar punishment
on count 8. Therefore, the court did not err in imposing a consecutive sentence on that
count.
                                       DISPOSITION
         Appellant’s sentence is modified to stay the term of imprisonment on his
conviction of false imprisonment and the accompanying firearm use enhancement, the
stay to become permanent upon appellant’s completion of the sentence imposed on his
conviction of infliction of corporal injury on a cohabitant. As modified, the judgment is
affirmed. The trial court is directed to prepare an amended abstract of judgment
reflecting this modification and to forward a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation.




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