Filed 1/21/15 P. v. Butterfield CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060509

v.                                                                       (Super.Ct.No. RIF1310033)

HENRY LEWIS BUTTERFIELD,                                                 OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Irma Poole Asberry,

Judge. Affirmed with directions.

         James M. Crawford, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and

Respondent.




                                                             1
       Defendant and appellant Henry Lewis Butterfield appeals from a judgment of

conviction for spousal/cohabitant abuse (Pen. Code, § 273.5, subd. (a)),1 false

imprisonment (§ 236), and simple assault as a lesser included offense to assault with a

deadly weapon. (§ 240.) Defendant also admitted an allegation that he had served a prior

prison term within the meaning of section 667.5, subdivision (b).

       Defendant was sentenced to a total term of four years in state prison—the middle

term of three years for the section 273.5 conviction and one year for the prior prison term.

The court also imposed a concurrent eight-month term for the false imprisonment and

stayed a six-month term for the assault pursuant to section 654.

       On this appeal defendant contends that the trial court erred by imposing a separate

term for the false imprisonment conviction, which he argues was also prohibited by

section 654. We disagree and affirm the judgment. However, we will order the

correction of the abstract of judgment as explained below.

                                 STATEMENT OF FACTS

       Defendant and his girlfriend, Sharon Loosevelt (the victim), were homeless but

had a regular location for sleeping and living near the Riverside Metrolink station. Early

on the evening of September 5, 2013, while returning to the campsite, Ms. Loosevelt saw

defendant with another woman and became angry. She told defendant she intended to

leave, and he grabbed her by the arms and legs. The victim was pulled onto a mattress

and held down; at one point defendant bit her in the face and punched her repeatedly.

       1   All subsequent statutory references are to the Penal Code.


                                              2
Eventually an acquaintance appeared and defendant released the victim. The victim fled

to a nearby gas station where she encountered California Highway Patrol (CHP) officers.

       The victim’s estimate of the duration of the incident was up to four hours. She

judged this by the observation that when she arrived, the sun was still up, but by the time

she got away from defendant it was dark. The victim also testified that on the previous

evening, defendant had “drug me across the parking lot” because “[h]e wanted me to

come back home again,” and that “[h]e didn’t want me to leave . . . I didn’t want to have

to be with him no more, so he would come back after me and start running and screaming

after me . . . .” She further testified that such behavior, along with physical violence

exerted to prevent her from leaving him, was a regular feature of the relationship.

       A Riverside police officer who had been dispatched to the gas station in response

to notification from the CHP testified that he arrived about 10:30 at night. He observed

the victim with blood on her face and a bruise near her eye.

       The person whose arrival allowed the victim to flee agreed that it was probably at

least 8:00 o’clock when he arrived and that it was dark. He confirmed that after he and

defendant exchanged words, the victim jumped up and ran, telling him “[y]ou better get

out of here or you’ll end up looking the way I am.” The witness saw that her face was

“all bruised and bloody.”




                                              3
       Defendant testified to a version in which he did not assault the victim and only

grabbed her when she began throwing things around the campsite after finding him with

the other female.

                                       DISCUSSION

                                              A.

       Defendant’s first argument is that he harbored only a single criminal intent when

he forcibly detained the victim and then committed the physical assaults which

constituted the violation of section 273.5.

       Section 654 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.” When section 654 applies, the proper

procedure is to impose the sentence on the lesser offense, but stay it.2 (People v. Alford

(2010) 180 Cal.App.4th 1463, 1469.)




       2 When the court imposes a concurrent sentence, that is treated as an implicit
finding that the court found separate intents. (See People v. Garcia (2008) 167
Cal.App.4th 1550, 1564-1565.) In this case it is unnecessary to infer the court’s
conclusion, because the defense agreed that section 654 did not prohibit multiple terms.
However, the People agree that a sentence which violates section 654 is an unauthorized
sentence and the failure to object at trial does not prevent the appellate court from
correcting the error. (People v. Hester (2000) 22 Cal.4th 290, 294-295; People v. Scott
(1994) 9 Cal.4th 331, 354, fn. 17.)



                                              4
       The crucial factor in determining whether section 654 prohibits multiple

punishment is whether or not the defendant can be found to have harbored multiple

criminal objectives; if all offenses were incidental to a single objective, multiple

punishment is prohibited. (People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1288.)

The trial court’s determination that separate intents were involved will be upheld if

supported by substantial evidence. (People v. Brents (2012) 53 Cal.4th 599, 618.)

       After a general discussion of the law in this respect, defendant relies on People v.

Guzman (1996) 45 Cal.App.4th 1023 (Guzman). In that case, the victim observed

defendant and others removing property from his (attached) garage. He pursued them,

and when he confronted them, defendant and another perpetrator beat, choked, and

kicked the victim before fleeing. (Id. at pp. 1025-1026.) Defendant was convicted of and

separately sentenced for burglary, robbery, and grand theft. The appellate court held that

the attack on the victim (which made the matter a robbery case through the use of force)

occurred while the perpetrators were attempting to escape after the burglary and that

separate punishment was inappropriate.3 (Id. at p. 1028.)

       Guzman is inapposite here. First, if the trial court believed that the victim’s

estimate of the time involved was anywhere near accurate, the false imprisonment

extended far beyond the time needed to inflict half a dozen punches and a bite. Perhaps

more conclusively, there was evidence that defendant first grabbed and detained the


       3 It also stayed the term imposed for grand theft, as a lesser included offense to
robbery. (Guzman, at p. 1028.)


                                              5
victim not in order to assault her, but specifically to prevent her from leaving him and the

area. The victim testified that she had announced her intent to leave when he seized her.

She also testified that defendant had been controlling throughout their relationship and on

the very evening before had forcibly dragged her across a parking lot to force her to

return with him to their campsite.

       It is possible that the assault reflected the same intent as the false imprisonment—

to coerce the victim into remaining with defendant through fear and violence. However,

the trial court could also have reasonably found that the false imprisonment reflected the

intent to prevent the victim from leaving, while the subsequent protracted assault,

including biting, simply reflected an intent to injure.4 The circumstances provide

substantial evidence to support the trial court’s ruling.

                                              B.

       The trial court orally imposed a subordinate concurrent term of eight months for

the false imprisonment conviction, calculated as one-third the midterm of two years.

However, the abstract of judgment erroneously shows that the full middle term of two

years was imposed. The People concede the error and agree that the abstract should be

corrected. We will so order.




       4 Indeed, the trial court made an express finding that the physical assault was
committed with the intent to physically hurt the victim in applying section 654 to the
cohabitant abuse and assault convictions.


                                              6
                                      DISPOSITION

       The judgment is affirmed. The trial court is directed to issue a corrected abstract

of judgment reflecting the imposition of a concurrent eight-month term for count 3, false

imprisonment, and to forward a copy of the corrected abstract of judgment to the

California Department of Corrections and Rehabilitation.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               HOLLENHORST
                                                                                             J.
We concur:



RAMIREZ
                       P. J.



KING
                          J.




                                             7
