Filed 8/2/16 P. v. Rodriguez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                          H041644
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C-13-70383)

         v.

RUBEN PUENTE RODRIGUEZ,

         Defendant and Appellant.

         Defendant Ruben Puente Rodriguez assaulted his father and also threatened to kill
him and harm his family. Based on that conduct, defendant pleaded no contest to three
felonies: elder abuse (Pen. Code, § 368, subd. (b)(1)),1 assault by means of force likely
to produce great bodily injury (§ 245, subd. (a)(4)), and making criminal threats (§ 422,
subd. (a)). On appeal, defendant argues that his sentence for making criminal threats
should have been stayed under section 654 because it was part of a course of conduct that
was indivisible from the conduct on which the other convictions was based. For the
reasons stated here, we will affirm the judgment.
                                  I.     TRIAL COURT PROCEEDINGS
         According to the probation report, in November 2013 San Jose Police Department
officers were dispatched to the home of defendant’s father, Ruben Rodriguez, Sr. (father),
based on a report of a family disturbance. An officer found father “in a great deal of
pain”; father was holding his back and could not stand or walk. Father told the officer

         1
             Unspecified statutory references are to the Penal Code.
that he had begun arguing with defendant after defendant threatened to harm father’s
wife, who was ill and in another room. Defendant was no longer at the house when the
officers arrived.
       Defendant’s sister stated that she had woken up at the house to the sound of father
and defendant yelling at each other in the front room. She entered the room and saw
defendant push father to the ground. Defendant “stomped on [father] several times with
his feet.” Another of defendant’s sisters also witnessed the attack, stating that defendant
punched father with closed fists several times, knocked him to the ground, and then
kicked him several times. Father’s wife did not witness the assault because she was in
another room but heard defendant threaten to kill father. Defendant does not contest the
statement in the probation report that “defendant also threatened to harm all of the family
members ... .”
       Defendant was charged with: elder abuse (§ 368, subd. (b)(1)), assault by means
of force likely to produce great bodily injury (§ 245, subd. (a)(4)), and making criminal
threats (§ 422, subd. (a)). The complaint also alleged that defendant had suffered a prior
serious or violent felony conviction (§ 667, subds. (b)–(i)). In return for an indicated
sentence of no more than five years four months in prison, defendant pleaded no contest
to all three charged counts and admitted the prior conviction. Defendant filed a
sentencing memorandum containing: a Romero motion (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497) regarding the prior strike; a motion to reduce the
criminal threats conviction to a misdemeanor (§ 17, subd. (b)); and a legal argument that
section 654 required the court to stay the sentences on two of the three felony
convictions. The court granted the Romero motion, denied the section 17, subdivision (b)
motion, and found that section 654 did not preclude consecutive sentencing for elder
abuse and making criminal threats. The court sentenced defendant to three years eight
months in prison, consisting of the middle term of three years for elder abuse (§ 368,


                                             2
subd. (b)(1)) and eight months for making criminal threats (one-third the middle term;
§§ 422, subd. (a), 1170.1, subd. (a), 1170, subd. (h)(1)).2
                                    II.   DISCUSSION
       Defendant acknowledges that he committed multiple criminal acts by physically
assaulting his father and also threatening him. Defendant argues that section 654
nonetheless precludes the sentence imposed by the trial court because his criminal acts
constituted an indivisible course of conduct that was motivated by a single intent and
objective.
       Section 654, subdivision (a) 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.” Section 654 applies “ ‘ “not only
where there was but one ‘act’ in the ordinary sense ... but also where a course of conduct
violated more than one statute and the problem was whether it comprised a divisible
transaction which could be punished under more than one statute within the meaning of
section 654.” ’ ” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) “ ‘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.’ ” (Ibid.) We
review a trial court’s application of section 654 for substantial evidence. (People v.
Brents (2012) 53 Cal.4th 599, 618.)
       Defendant’s intent and objective in physically assaulting his father is clear: he
intended to hurt his father. As for defendant’s threats to kill his father and harm other
family members, the trial court could reasonably conclude that defendant had the separate
intent and objective of frightening his father. These severable objectives are illustrated
by looking at the required elements of elder abuse and making criminal threats. A person
       2
        The court imposed a concurrent three-year middle term for the assault
conviction. (§ 245, subd. (a)(4).)
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commits elder abuse by, among other things, inflicting “unjustifiable physical pain” upon
an elderly person. (§ 368, subd. (b)(1).) Making criminal threats, on the other hand,
requires no infliction of physical pain and instead punishes any person “who willfully
threatens to commit a crime which will result in death or great bodily injury to another
person” with the specific intent that the statement is to be taken as a threat “even if there
is no intent of actually carrying it out ... .” (§ 422, subd. (a).) Thus, defendant did not
need to physically assault father to make a criminal threat; nor did he need to frighten his
father to commit elder abuse.
       Defendant’s focus on the temporal proximity of the two crimes does not change
our analysis. “ ‘It is defendant’s intent and objective, not the temporal proximity of his
offenses, which determine whether the transaction is indivisible.’ ” (People v. Hicks
(1993) 6 Cal.4th 784, 789.) Though the two crimes occurred in quick succession,
substantial evidence supported the trial court’s conclusion that defendant’s actions were
divisible because each was motivated by a different intent and objective.
                                   III.   DISPOSITION
       The judgment is affirmed.




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                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Rushing, P.J.




____________________________
Premo, J.
