Filed 7/24/14 P. v. Pleasant CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067102
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CRM022849)
                   v.

TERRY KEITH PLEASANT,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced County. Ronald W.
Hansen, Judge.
         Derek K. Kowata, 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, Stephen G. Herndon and Henry
J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P.J., Detjen, J. and Peña, J.
       A jury convicted appellant Terry Keith Pleasant of making criminal threats (Pen.
Code, § 422;1 count 1), battery resulting in infliction of serious bodily injury (§ 243,
subd. (d); count 3), assault by means of force likely to cause great bodily injury (§ 245,
subd. (a)(4); count 4), and misdemeanor false imprisonment (§§ 236, 237, subd. (a)), a
lesser included offense of false imprisonment by violence or menace, a felony (§§ 236,
237, subd. (a), 1170, subd. (h)), charged in count 2. In a separate proceeding, the court
found true enhancement allegations that appellant had served four separate prison terms
for prior felony convictions (§ 667.5, subd. (b)).
       The court imposed a prison term of eight years, consisting of the four-year upper
term on appellant’s battery conviction and one year on each of the four prior prison term
enhancements. On counts 1 and 4, the court imposed, and stayed pursuant to section 654,
respectively, terms of three and four years. The court imposed a concurrent six-month
term on appellant’s misdemeanor false imprisonment conviction.
       On appeal, appellant contends the imposition of sentence on both the battery and
false imprisonment convictions violated the section 654 proscription against multiple
punishment. We affirm.
                                          FACTS2
Background
       At the time of trial, Michelle Turner had known appellant for approximately 23
years.3 She had been married to his brother. She had not seen appellant in approximately
10 years, when, in February 2012, he came to her door. Appellant’s mother had recently
died, and Turner, in an effort to “be a friend,” at first allowed him to stay with her.

1      All statutory references are to the Penal Code.
2      Because appellant’s contention on appeal relates only to the sentence imposed on
his battery and false imprisonment convictions, we limit our factual summary, for the
most part, to those offenses.
3      Except as otherwise indicated, our factual summary is taken from Turner’s
testimony.


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However, appellant “just more or less took over [her] house,” became “possessive” and
“[c]ontrolling,” and, although she told him several times he could not stay with her, he
“[j]ust would not leave.”
Battery Resulting in Infliction of Serious Bodily Injury
       On one occasion, appellant pushed Turner “[h]ard enough” to cause her to fall.
When she fell, she hit her knee on the rail of a bed, cutting her knee so deep “[y]ou could
see the bone.” The wound required 22 stitches.
       According to the records of Mercy Medical Center Hospital in Merced (hospital),
on April 1, 2012, Turner was treated at the hospital and received “[l]eft knee laceration
repair” for a wound “over the left patella with some exposed bone.”
False Imprisonment
       Appellant “[would] not let [Turner] out of the house.” To prevent her from
leaving the house, he would “[g]et in front of the door,” punch her and tell her she “ain’t
going … anywhere.” Turner “would try to get outside the door,” but the “garage door
would be locked.”
       “Several times,” on “[d]ifferent days,” appellant “wouldn’t let [Turner]” leave the
house. He would “block [her] from leaving” by standing in front of the door. This
happened at least four or five times.
       Appellant “tr[ied] to keep [Turner] locked up inside the house” by “keeping things
in front of the bedroom door.” He would “make sure [Turner] and [appellant] were in the
room and he would have things up against the bedroom door that barred [the door].”
Turner had “weights and [a] long bar,” and appellant put 25-pound weights “underneath
so the door wouldn’t be wedged open.”
       On one occasion Turner “needed to get away” and was trying to leave the house to
go visit a girlfriend, but appellant “said [she] wasn’t going anywhere” and punched her in
the face. She landed on her knee. “[T]hat … stopped [her] from going anywhere.” At
the time of this incident, she “had stitches still.”


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       On the morning of another day, appellant “threw hot water … from the coffee pot”
on Turner and “[b]ody slammed [her] on the ground.” Turner “knew that day [she] had
to find a way to get out.” At about 9:00 or 10:00 p.m. appellant fell asleep. “He had an
arm and leg on [Turner] to make sure [she would] stay right there,” but Turner was able
to “slid[e] out [of] the bed” and go next door to her daughter’s house. Her daughter
called the police.
       Dominic Lara testified to the following. He is married to Turner’s daughter and at
one time he and his wife lived next door to Turner. On or about May 8, 2012, during the
night, she came to their house. She was “very nervous, scared.” A short time later, Lara
heard appellant yelling and banging on the wall. Lara called the police.
                                      DISCUSSION
       Appellant contends the “the false imprisonment … was incidental to the battery,”
both offenses were “committed with the same criminal intent and objective,” viz., “to
control” Turner, and therefore the court erred in failing to stay the term imposed on the
false imprisonment conviction pursuant to section 654. We disagree.
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.” 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).) Section 654 “does not allow any multiple punishment,
including either concurrent or consecutive sentences.” (People v. Deloza (1998) 18
Cal.4th 585, 592.)
       As indicated above, under the plain language of the statute, multiple punishment
may not be imposed for a single “act or omission.” (§ 654, subd. (a).) However, “[c]ase


                                             4
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.)
        In determining whether a course of conduct consisting of multiple acts is
indivisible, we look to the “defendant’s intent and objective.” (People v. Harrison (1989)
48 Cal.3d 321, 335 (Harrison).) “[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, 638-639.)
        “[D]ecisions ... 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.) 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, supra, 5
Cal.4th 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.]


                                              5
If the separation in time afforded defendants an opportunity to 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.) Another such case is People v. Trotter (1992) 7
Cal.App.4th 363, 368 (Trotter).
       In Trotter, the defendant was punished separately for two of three gunshots fired at
a pursuing police officer. On appeal, the court rejected the defendant’s claim of a single
objective—“to force [the pursuing officer] to break off his pursuit” (Trotter, supra, 7
Cal.App.4th at p. 367) and thereby avoid apprehension—and concluded it was proper to
punish him separately for the first two shots, which were fired within one minute of each
other. The court observed: “[T]his was not a case where only one volitional act gave rise
to multiple offenses. Each shot required a separate trigger pull. All three assaults were
volitional and calculated, and were separated by periods of time during which reflection
was possible. None was spontaneous or uncontrollable. ‘Defendant should … not be
rewarded where, instead of taking advantage of an opportunity to walk away from the
victim, he voluntarily resumed his … assaultive behavior.’” (Id. at p. 368, citing
Harrison, supra, 48 Cal.3d at p. 338.)
       When a trial court sentences a defendant for two crimes, without suspending
execution of sentence, the judge implicitly finds the acts involved more than one
objective. (See People v. Osband (1996) 13 Cal.4th 622, 730.) “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.’” (People v. Green (1996) 50 Cal.App.4th
1076, 1084.)




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Analysis
       The evidence shows appellant committed the battery4 on April 1, 2012. The
evidence is less clear as to the date(s) on which appellant falsely imprisoned Turner,5 but
from the evidence the following is fairly inferable.
       First, on at least four occasions, on “different days,” appellant stood in front of the
door to Turner’s house, blocking the way and preventing her from leaving the house.
Second, some time intervened between the battery and the incident in which appellant
prevented Turner from leaving the house to go visit a friend by punching her and telling
her she was not going “anywhere,” a fact inferable from the evidence that she had stitches
at the time of the latter incident and she had received the stitches as a result of the battery.
Third, on multiple occasions appellant barricaded the bedroom door with weights,
preventing Turner from leaving. Fourth, on at least one occasion, he locked the garage
door so Turner could not leave. Fifth, on May 8, 2012, after assaulting Turner in the
morning, appellant placed an arm and a leg on Turner when the two were in bed, in an
attempt to keep her from leaving, which was successful until he fell asleep.
       From the foregoing, it is also reasonably inferable that the battery and one or more
of the acts of false imprisonment were separate volitional acts, between which appellant
had an opportunity—indeed, it appears, at least days—to reflect. Substantial evidence
thus supports the court’s implied finding that the battery and false imprisonment of which



4     The elements of battery are “willful and unlawful use of force or violence upon the
person of another.” (§ 242.)
5      False imprisonment is defined as “the unlawful violation of the personal liberty of
another.” (§ 236.) “‘Any exercise of force, or express or implied threat of force, by
which in fact the other person is deprived of his liberty or is compelled to remain where
he does not wish to remain, or to go where he does not wish to go, is an imprisonment.
The wrong may be committed by acts or by words, or both, and by merely operating upon
the will of the individual or by personal violence, or both.’” (People v. Agnew (1940) 16
Cal.2d 655, 659-660.)


                                               7
appellant stands convicted, like the offenses at issue in Trotter, were not part of an
indivisible course of conduct.
       Appellant argues we may not infer that the court made an implied finding that the
battery and false imprisonment were not part of an indivisible course of conduct because
the court found that the battery, the count 1 criminal threats and the count 4 assault were
part of an indivisible course of conduct. To address this contention, we set forth the
relevant procedural background.
       The court stated: “In evaluating this case on whether or not there is a course of
conduct that violates more than one statute but constitutes an indivisible transaction, my
personal feelings are that Counts 1 [criminal threats] and 4 [aggravated assault] are
subject to [section] 654. But I’ll listen to arguments.”
       There followed an exchange between the court and the prosecutor, which included
the following:
       “THE COURT: I’m focused on it’s a course of conduct.
       “MR. SERRATO [prosecutor]: I think there is a course of conduct.
       “THE COURT: I think it’s a course of conduct to control her.
       “MR. SERRATO: I believe so. To me it’s aggravated because the ongoing level,
the intensity of the desire to control her, and it’s ongoing domestic violence.
       “THE COURT: But that supports my [section] 654 analysis. It’s kind of an
indivisible, ongoing thing. It’s incident to a single objective and [the] objective is to
control Ms. Turner.
       “MR. SERRATO: Sure. Essentially to move into her house and take over.
       “THE COURT: Take over the house, right.”
       The court concluded: “I think the principal count that the Court is going to select
is Count 3 [battery], but Counts 1 and 4 are subject to [section] 654 and those sentences
have to be stayed.”




                                              8
       The court’s remarks and its finding set forth above related to the applicability of
section 654 to the count 1 and count 4 offenses only. The court made no mention of the
sentence imposed on the false imprisonment conviction. As indicated above, where, as
here, a sentencing court imposes concurrent terms, the court has made an implied finding
that those offenses were not committed pursuant to a single intent and objective. This
conclusion is strengthened by the following basic tenet of appellate review: “‘A
judgment or order of the lower court is presumed correct. All intendments and
presumptions are indulged to support it on matters as to which the record is silent, and
error must be affirmatively shown. This is not only a general principle of appellate
practice but an ingredient of the constitutional doctrine of reversible error.’” (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564, second italics added.)
       The People have not raised an appellate challenge to the court’s finding that
section 654 precluded imposition of sentence on counts 1 and 4, and we express no
opinion as to the correctness of that finding. We do conclude the court impliedly found
that the battery and false imprisonment were not part of an indivisible course of conduct
and, as demonstrated above, that finding was supported by substantial evidence.
Accordingly, we reject appellant’s claim that the sentence imposed violated section 654.
                                     DISPOSITION
       The judgment is affirmed.




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