Filed 11/22/16


                    CERTIFIED FOR PARTIAL PUBLICATION*



            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                   E062962

v.                                                  (Super.Ct.No. FVI1302657)

PHILIP RAYMOND MEJIA,                               OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of San Bernardino County. Debra Harris,

Judge. Affirmed with directions.

        Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant

and Appellant.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn

Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

        *Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts 1 through 3 of the Legal Analysis.

                                             1
       Defendant and appellant Philip Raymond Mejia appeals his conviction for torture,

spousal rape, spousal abuse, and criminal threats. We reject his contention that the court

should have conducted a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118

(Marsden) based on defendant‟s statements during a hearing on his request to represent

himself and his contentions concerning the improper admission of evidence. We agree,

however, that the trial court erred in imposing an unstayed sentence on count 3.

Accordingly, we will remand the matter with directions to stay imposition of that

sentence.

                               PROCEDURAL HISTORY

       Defendant was charged with one count of torture (Pen. Code, § 206; count 1);1 one

count of spousal rape with tying and binding (§ 262, subd. (a)(1); count 2); one count of

corporal injury to a spouse (§ 273.5, subd. (a); count 3); and one count of criminal threats

(§ 422; count 4). As to all four counts, the information alleged that defendant administered

methamphetamine to the victim in the commission of the offenses.

       A jury returned guilty verdicts on all four counts. It found the allegation of tying

and binding true, but found the allegation of administration of methamphetamine not true

as to all counts.

       The trial court imposed the upper term of four years in state prison on count 3,

with a consecutive term of eight months on count 4. On count 2, the court imposed a



       1 All further statutory citations refer to the Penal Code, unless another code is
specified.

                                             2
term of 15 years to life, and on count 1, it imposed a term of seven years to life in state

prison. Defendant filed a timely notice of appeal.

                                           FACTS

       Defendant and the victim met when she was 15 years old. When she was 18 or 19

years old, they were married. By the time the victim was 20 years old, she had three

children. She and defendant used methamphetamine together but stopped when the third

child was born. From the beginning, defendant said “mean things” to the victim and

would sometimes hit her. In approximately March 2013, when defendant lost his job, his

abusiveness slowly got worse. On one occasion, defendant burned her leg with a

methamphetamine pipe when she said she did not want to smoke the drug. On another

occasion, he hit her all over her body with a wooden flute. Other times, he hit her on her

head with his hands.

       The victim suspected that defendant had cheated on her, but she “couldn‟t

question what he was doing.” Talking back to defendant or not wanting to do what he

asked would “set him off.” In order to start a conversation about infidelity, she told him,

untruthfully, that she had cheated on him. He was angry and talked about punishing her.

He said there were “consequences.” On other occasions, defendant would handcuff her

to the bed frame and make her lie on the floor. They had occasionally used the handcuffs

during sex, for “fun purposes,” but after that, it “wasn‟t fun anymore.” Defendant would

sometimes leave her handcuffed to the bed for hours or days at a time. While she was

handcuffed, she was not able to eat or drink water. Defendant would “sometimes” allow



                                              3
her to go to the bathroom, but sometimes she was forced to “go” on herself. The

handcuffs sometimes cut or bruised her wrists.

       At some point, defendant began to video record their sexual activity. The victim

could not remember why it started, but it was after defendant lost his job. She was “kind

of okay” with it in the beginning, but sometimes she would get embarrassed and push the

cell phone or camera away. At the beginning, there were no handcuffs or abuse, other

than defendant “being mean” and telling her what to do. Defendant became increasing

abusive, hitting her, using a Taser on her, keeping her from her children and handcuffing

her. She had “too many [Taser] marks to count” on her chest and stomach. He “tased”

her once while she was tied to a chair.

       Defendant taped her to a chair with duct tape and put duct tape over her mouth,

making it hard to breathe. On one occasion, she was bent across the chair on her

stomach, with her head on the floor. Defendant had intercourse with her while she was

bound. She shook her head to indicate that she did not want to, but she could not

otherwise protest. He also engaged in anal intercourse with her on some occasions, even

though she said she did not want to, because it hurt. Although she sometimes engaged

willingly in oral sex, there were times when she did not want to do it, but did anyway so

that defendant would not hit her or handcuff her. Defendant would sometimes force her.

On one occasion, he sodomized her with a socket wrench.

       At one point, defendant cleared the victim‟s clothes out of the bedroom closet and

put a baby mattress on the floor. He would lock her in the closet with a bucket and told

her to stay there and not move. He said he was going to have other men come to the

                                            4
house and force her to orally copulate them. He also threatened to sell the videos on

YouTube. He threatened to wrap her in a rug and set her on fire. He once threw gasoline

on her while she was in the closet. Then he shut her in the closet and left her there for

hours. On one occasion, he cut the side of her thigh with a small screwdriver.

       At one point, the victim asked defendant to let her kill herself. He tied a rope

around her neck and had her stand on a bucket. He kicked the bucket away and let her

hang while he was holding the rope. The rope cut her neck.

       The victim did not have a key to the couple‟s apartment. Defendant screwed the

front door closed to keep people from coming in. He also added locks to the door. There

was also a surveillance camera in the living room.

       At least once, defendant hit the victim so hard that she lost consciousness. He

revived her by throwing ice on her. On one occasion, he put duct tape on her face, put a

wet towel on her face and over her nose, and poured water on her. She could not breathe.

Defendant had a device he said was used to strangle a person and threatened to use it on

her, to frighten her. He never used it, however.

       On August 21, 2013, the victim was late getting the oldest child ready for school.

Defendant smacked her with his hand on the back of her head. She then got the middle

child ready for school. The defendant took that child to school; the oldest one stayed

home. Before defendant left, he hit the victim on the back of the head again and said he

would “beat the shit” out of her. However, when he left, he left the door unlocked. She

ran to a neighbor‟s apartment with the two children and called the police. The neighbor

said that the victim appeared “petrified.” While she was on the phone with the police,

                                             5
she could hear defendant shouting because he could not find her. She had multiple

bruises on her face from prior incidents.

       The police officer who responded first spoke to the victim and observed her

injuries, including burn marks on her stomach. He then entered the couple‟s apartment.

He found a Taser in a drawer in the bedroom, a baggie of methamphetamine in a tool box

and handcuffs on the bedroom floor. He also observed a live feed from a camera in the

living room, being shown on a television screen. He saw a toddler bed in the closet and

observed that the closet locked from the outside.

       Detectives who arrived later spoke to the victim and observed that she was

extremely thin2 and had multiple cuts, bruises and abrasions in various stages of healing,

and Taser marks on her stomach. In the couple‟s apartment, the detectives found a

strangulation device and handcuffs in the bedroom, a bag of methamphetamine and a

methamphetamine pipe, a rope and a gasoline can. They also found several digital flash

drives containing videos of various sexual acts.

       Thirteen videos were played for the jury. A transcript of the conversations heard

on the videos was provided to the jury and admitted into evidence.

       In one of the videos, defendant said to the camera, “The reality of it is, is yes, if

she does anything stupid I will kill her. Number two, she thinks that camera‟s a joke.

[Its purpose] is to show you, when you fuck with the wrong person, husband, wife,

child . . . you do the wrong things, there‟s a consequence sooner or later in life.”


       2   On August 21, 2013, the victim weighed 82 pounds.

                                              6
       At another point, he said, “[I]t was her choice. She chose this okay um . . . she has

bruises all over her legs. I did that. I did that because I tied her ass up, I beat the shit out

of her, I tased her. I fucked her in the ass and I did everything I fuckin‟ wanted to do and

I could have done more because she‟s a bitch.” He told the victim that he was recording

the session for YouTube, but “[n]ot the rape, not any of that.” He told his “audience” that

the victim “may not die” that day, “but you will see what a hostage can and will go

through. There‟s torture, pain, tape, chains, uh knives, needles, water . . . a lot of things

that . . . a person can use to start getting to somebody.” He later told her that if she

continued to lie to him, he would put her murder on YouTube.

                                     LEGAL ANALYSIS

                                               1.

  THE COURT WAS NOT REQUIRED TO HOLD A MARSDEN HEARING BASED

    ON STATEMENTS DEFENDANT MADE DURING A FARETTA3 HEARING

       A court is required to hold a hearing into a defendant‟s complaint that his court-

appointed attorney is not providing competent representation whenever the defendant

clearly indicates that he is seeking substitution of counsel. (Marsden, supra, 2 Cal.3d at

p. 123; People v. Valdez (2004) 32 Cal.4th 73, 97; People v. Lucky (1988) 45 Cal.3d 259,

281 & fn. 8.) Defendant contends that because he expressed dissatisfaction with his

attorney during a hearing on his request to represent himself, the trial court was obliged

to conduct a Marsden hearing. As we discuss, however, defendant made it clear during


       3   Faretta v. California (1975) 422 U.S. 806 (Faretta).

                                               7
that hearing that he was not seeking substitution of counsel but wanted to represent

himself. Accordingly, the court had no duty to conduct a Marsden hearing.

       The issue arose as follows: On April 10, 2014, the trial court commenced a

Marsden hearing based on its understanding that defendant wanted a new attorney.

However, defendant explained to the court that he was not seeking a new attorney. What

he wanted was to have his “conflict answered.” He did not elaborate as to what that

meant. Because defendant stated unequivocally that he did not want a new attorney, the

court concluded the hearing.

       On November 21, 2014, the court again convened a Marsden hearing. The court

stated that it had received a “conflict of interest and complaint letter.” In the letter,

defendant stated that he wanted his public defender, Michael Mendoza, dismissed for

incompetence. Defendant stated that Mr. Mendoza was not communicating with him,

that he had breached defendant‟s direction not to negotiate with the district attorney, that

he had failed to retrieve evidence defendant wanted him to obtain, that he had failed to

file a Pitchess4 motion, and that he had failed to ensure a hearing on the record of a

motion, filed by defendant personally, seeking to set aside the information pursuant to

section 995. The court listened to defendant‟s grievances, obtained counsel‟s

explanations for his actions and inactions, and determined that defendant had failed to

show incompetence by Mr. Mendoza. Accordingly, it denied the motion.


       4 Pitchess v. Superior Court (1974) 11 Cal.3d 531, superseded by Penal Code
section 832.5 et seq. and Evidence Code sections 1043 and 1045, as stated in Long Beach
Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 67-68.

                                               8
       On December 5, 2014, defendant made a request to represent himself, pursuant to

Faretta, supra, 422 U.S. 806. After the court explained to defendant the pitfalls of self-

representation, the court asked defendant if he still wanted to represent himself.

Defendant replied, “I do, but it‟s not willingly.” He explained that he felt compelled to

represent himself because he was being held against his will and because “the

representation that I‟ve been receiving from Mendoza is from the state, who is also

prosecuting me.” The court agreed to let defendant represent himself if he signed a

waiver. Defendant refused to do so. After a consultation with Mr. Mendoza, defendant

was given permission to address the court. This was done off the record.

       The following court day, the court revisited defendant‟s request for self-

representation and explained again that the court could not allow him to do so unless

defendant gave an unequivocal waiver. The court explained various reasons, apart from

lack of an unequivocal waiver, that would justify denial of the motion. The court then

asked defendant if he was satisfied with having counsel represent him. Defendant

replied, “Absolutely not.” He explained again that he was forced to represent himself

because he was being held against his will. He said that he was dissatisfied with

Mr. Mendoza‟s representation, but that he had “already had [a] Marsden hearing trying to

fire him and that hasn‟t solved nothing.” He said, “I feel I‟m forced when I do not wish

to participate in what‟s taking place in this courtroom, which I feel is fraud under Article

3, Section 2, 1217 [sic] of the constitution where only common law or military tribunal

venue is allowed in this courtroom. I do not want to participate in the fraud, at all. I

understand what‟s taking place in this courtroom and I do not accept it whatsoever. And

                                              9
there is no one on my side and understanding what‟s going on in this courtroom but me.

I‟m sure you may understand what‟s taking place, which is why I asked the District

Attorney to provide some form of jurisdiction to show that she has the right to bring this

claim to this courtroom and to continue to proceed in this process.”5

       After further discussion, during which the court suggested that an evaluation of

defendant‟s competency to represent himself might be in order, the court again found that

defendant had not unequivocally asked to represent himself and had not waived his right




       5  We infer that defendant was referring to Article III, section 2, of the United
States Constitution. Article III, in pertinent part, provides:
        “Section 1. The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress may from time to time ordain
and establish. The Judges, both of the supreme and inferior Courts, shall hold their
Offices during good Behaviour, and shall, at stated Times, receive for their Services, a
Compensation, which shall not be diminished during their Continuance in Office.
        “Section 2. The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and Treaties made, or
which shall be made, under their Authority;—to all Cases affecting Ambassadors, other
public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to
Controversies to which the United States shall be a Party;—to Controversies between two
or more States;— between a State and Citizens of another State,—between Citizens of
different States,—between Citizens of the same State claiming Lands under Grants of
different States, and between a State, or the Citizens thereof, and foreign States, Citizens
or Subjects.
        “In all Cases affecting Ambassadors, other public Ministers and Consuls, and
those in which a State shall be Party, the supreme Court shall have original Jurisdiction.
In all the other Cases before mentioned, the supreme Court shall have appellate
Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations
as the Congress shall make.
        “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and
such Trial shall be held in the State where the said Crimes shall have been committed; but
when not committed within any State, the Trial shall be at such Place or Places as the
Congress may by Law have directed.”

                                            10
to counsel. The court asked defense counsel to look into the possibility of requesting the

evaluation and continued the proceeding to the following day.

       The next day, defendant reiterated his concern about the court‟s legitimacy

“consistent with the constitution of the Supreme Court ruling” that he had referred to

previously, i.e., “Article 1, section 8, clause 17.”6 He asked, “What‟s taking place in this

courtroom, common law or admiralty military tribunal venue? And I would like to be

told which is taking place.” The court asked counsel if he understood what defendant

was talking about. Counsel explained that defendant doubted the trial court‟s jurisdiction

and the district attorney‟s authority to represent the People of the State of California. The

court responded that it had already ruled on that issue when defendant raised it in his

section 995 motion, and informed defendant that he could raise the issue by writ or on

appeal, but that the issue was decided for purposes of his trial.

       The court then returned to the question of self-representation. The court stated

that the only issue defendant had mentioned with respect to his attorney was that

Mr. Mendoza refused to make certain statements when defendant wanted him to. The


       6  Defendant previously referred to Article III, section 2, of the United States
Constitution.
       Article I of the United States Constitution enumerates the powers of Congress;
section 8, clause 17 authorizes Congress to exercise exclusive legislation over the seat of
government of the United States, i.e., Washington, D.C., and to exercise like authority
over all places purchased for the erection of forts, magazines, arsenals, dockyards and
other needful buildings.
       Article I, section 8 of the California Constitution provides: “A person may not be
disqualified from entering or pursuing a business, profession, vocation, or employment
because of sex, race, creed, color, or national or ethnic origin.” It does not have a
clause 17. Accordingly, we do not know what defendant meant by this statement.

                                             11
court had previously explained to defendant that counsel knew when a particular

statement was or was not appropriate, depending upon the specific issue the court was

dealing with at any particular time. Defense counsel explained that the statements

defendant wanted him to make were the ones defendant had just made, i.e., concerning

the court‟s authority under Article III of the United States Constitution and concerning

the district attorney‟s authority to try him, and that if he did not make those statements

when defendant wanted him to, defendant would just make them on his own. Defendant

had been removed from a prior hearing for doing so. After discussion of the limitations

on an incarcerated self-represented defendant‟s ability to prepare for trial and the court‟s

refusal to release him on his own recognizance, defendant concluded that it would be in

his best interest to have Mr. Mendoza represent him. It was against his will, he said, but

he had no choice. Based on those statements, the court concluded that defendant was not

seeking self-representation.

       Nowhere in any of these hearings on self-representation did defendant ask for

another attorney to replace Mr. Mendoza or clearly indicate that he wanted a new

attorney. The mere mention of dissatisfaction with current counsel during a Faretta

hearing is not sufficient to trigger the court‟s duty to hold a Marsden hearing. (People v.

Mendoza (2000) 24 Cal.4th 130, 156-157.) Accordingly, we reject defendant‟s

contention.




                                             12
                                             2.

              DEFENDANT DID NOT OBJECT TO EVIDENCE ON THE

                        GROUNDS HE ASSERTS ON APPEAL

       The victim‟s sister and father both testified for the prosecution regarding their

observations of defendant‟s relationship with the victim. Defendant now contends that

their testimony was inadmissible on several grounds: That it was improper evidence of

prior crimes; that it was irrelevant; that it was improper character evidence and not

admissible as evidence of propensity to commit acts of domestic violence as provided by

Evidence Code section 1109; and that it should have been excluded under Evidence Code

section 352 as more prejudicial than probative.7

       In order to preserve issues pertaining to the admissibility of evidence for appellate

review, the party must make a timely and specific objection on the particular ground he




       7  As pertinent here, Evidence Code section 1109, subdivision (a)(1) provides:
“(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the
defendant is accused of an offense involving domestic violence, evidence of the
defendant‟s commission of other domestic violence is not made inadmissible by Section
1101 if the evidence is not inadmissible pursuant to Section 352.”
       Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”

                                             13
seeks to raise on appeal. (People v. Farnam (2002) 28 Cal.4th 107, 153; see also Evid.

Code, § 353.)8 Here, defendant did not make a pretrial motion to exclude evidence of

prior acts of domestic abuse on the grounds he asserts on appeal.9 Rather, he objected as

the evidence came up during the trial. We will examine each objection cited by

defendant in turn.

       At reporter‟s transcript page 352, the victim‟s sister, Josephine, was asked if she

had ever seen defendant become violent with the victim. Defense counsel did not object.

Josephine answered that on one occasion, defendant became angry with the victim and

pulled her off the bed by her feet, causing the victim to fall on the floor. After that

question, the court summoned counsel to the bench on a related topic. Defense counsel

then said that he had been about to make an objection because it “[s]ounds like we are

getting into character evidence, like prior bad acts that [defendant] did.” The court

agreed that the prosecutor appeared to be getting into character evidence. The prosecutor

replied, “I plan to move on.” The court responded, “Okay.” Defendant did not seek to

have the witness‟s prior answer stricken, nor did he interpose another objection when the

prosecutor resumed questioning the witness. Accordingly, defendant‟s objection on


       8  Evidence Code section 353 provides in pertinent part: “A verdict or finding
shall not be set aside, nor shall the judgment or decision based thereon be reversed, by
reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an
objection to or a motion to exclude or to strike the evidence that was timely made and so
stated as to make clear the specific ground of the objection or motion.”

       9 Defendant did seek exclusion of his prior conviction for domestic violence. The
court overruled his objection. Neither of the two witnesses was asked about the prior
conviction.

                                              14
grounds of character evidence was essentially sustained, and no evidentiary error was

preserved for appeal.

       At reporter‟s transcript page 361, defense counsel asked for an offer of proof as to

what the victim‟s father, Dwight, would testify to. He alluded to Dwight‟s potential

testimony generally as not relevant, but did not give a reason that he considered it

irrelevant. The prosecutor responded that Dwight would testify about his diminishing

relationship with the victim because of defendant‟s interference, and about his

observations that the victim‟s health appeared to be deteriorating during the relevant

period of time. The court overruled the objection. Defense counsel did not interpose any

objection to the testimony as described in the offer of proof. Accordingly, no evidentiary

issue was preserved for review.

       At reporter‟s transcript page 364, defense counsel objected to Dwight‟s testimony

that one of his daughters had told him that she thought defendant was abusing the victim.

The ground for objection was hearsay. The court sustained the objection and ordered the

answer stricken. At reporter‟s transcript page 365, cited by defendant in his opening

brief, there is no objection.

       Because no timely objection to evidence was made and overruled by the court on

the grounds defendant asserts on appeal, we need not address his contentions.




                                             15
                                              3.

    DEFENDANT‟S CLAIM OF PROSECUTORIAL ERROR OR MISCONDUCT

     DURING CLOSING ARGUMENT WAS NOT PRESERVED FOR REVIEW

       During her closing argument, the prosecutor stated to the jury that torture is

“almost like an umbrella-like crime. It‟s not necessarily something that happens with one

punch, or something that happens with one strangulation, or something that happens with

one rape, or one sodomy or one of something. Torture is kind of all-encompassing. And

[the victim] talked about it and you see some of the behavior on the videos as well. But

it‟s stuff like when [the victim] describes how the defendant would kind of C-clamp her

throat with his hand and hold her up until she got to the point of unconsciousness and he

had to splash water on her face to wake her up, coupled with being punched, being

kicked, being tased, not having food, being left locked in a closet. It‟s all of those things,

along with the rapes and the sodomy and all of the forcible crimes. It‟s an umbrella over

all of those things.” Defendant contends that this is a misstatement of the law and

constituted prosecutorial misconduct. Trial counsel did not object, however, apparently

preferring to address the prosecutor‟s remarks in his own argument.

       Acknowledging that claims of prosecutorial misconduct are not, as a general rule,

preserved for appellate review unless trial counsel makes a contemporaneous objection

on the same ground and requests that the jury be admonished to disregard the impropriety

(People v. Samayoa (1997) 15 Cal.4th 795, 841), defendant contends that the failure to

object should be excused because the record demonstrates that an objection would have



                                             16
been futile. He points out that trial counsel lodged at least nine objections during the

prosecutor‟s rebuttal argument and that the trial court overruled all of them.

          We disagree that this shows that an objection to a misstatement of the law, if such

it was, would have been futile. Defense counsel‟s first objection was that the prosecutor

had misstated the evidence. The trial court implicitly overruled it, saying, “This is

argument.” However, the court went on to admonish the jury that arguments of counsel

are not evidence, thus achieving the objective of the objection. The rest of defense

counsel‟s objections during rebuttal were based on the contention that the prosecutor‟s

rebuttal exceeded the scope of his closing argument and therefore constituted improper

rebuttal. The court overruled them based on the court‟s recollection that in his argument,

defense counsel had touched on the matters the prosecutor raised during her rebuttal.

This in no way suggests that the court would not have sustained an objection to a

misstatement of the law. Accordingly, we reject the contention that the prosecutor‟s

alleged misstatement of the law was preserved for review despite trial counsel‟s failure to

object.

          We also reject defendant‟s alternative claim that the failure to object constituted

ineffective assistance of trial counsel, in violation of his constitutional trial rights. We

cannot address such a claim on direct appeal unless the reasons for the challenged act or

omission appear on the record or there simply could be no rational tactical basis for

counsel‟s conduct. (People v. Pope (1979) 23 Cal.3d 412, 422.) Defendant argues that

counsel could not have had a rational tactical reason for failing to object. We disagree.

If counsel had objected and the court had sustained his objection, at most the court would

                                                17
have referred the jurors to the instruction and told them that they must follow the court‟s

instructions on the law rather than any conflicting argument by counsel. Instead, counsel

countered the prosecutor‟s description of the law of torture by discussing the instruction

defining torture and explaining to the jury why the prosecutor was incorrect. Indeed, he

argued that the prosecutor was trying to “bamboozle” them with her argument. We

cannot say as a matter of law that this was not a rational tactical choice. Accordingly, the

claim of ineffective assistance of counsel fails.

                                              4.

                   SECTION 654 PRECLUDES IMPOSITION OF AN

                         UNSTAYED SENTENCE ON COUNT 3

       Defendant contends that section 654 precludes imposition of sentence on both

count 1 and count 3, for torture and corporal injury to a spouse, respectively.

       Section 654 provides, in pertinent 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. An acquittal or conviction and

sentence under any one bars a prosecution for the same act or omission under any other.”

(§ 654, subd. (a).) Section 654 precludes imposition of an unstayed sentence on the count

subject to the lesser punishment. (People v. Mesa (2012) 54 Cal.4th 191, 195.)

       This section has long been interpreted to preclude multiple punishments not only

for a single act that violates more than one statute, but for an indivisible course of

conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.) “The key inquiry is whether the

                                              18
objective and intent attending more than one crime committed during a continuous course

of conduct was the same. [Citation.]” (People v. Meeks (2004) 123 Cal.App.4th 695,

704.) “[I]f all of the offenses were merely incident 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.                   [Citation.] [¶] If,

on the other hand, defendant harbored „multiple criminal objectives,‟ which were

independent of and not merely incidental to each other, he may be punished for each

statutory violation committed in pursuit of each objective, „even though the violations

shared common acts or were parts of an otherwise indivisible course of conduct.‟

[Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) Defendant contends that

the sentence on count 3 must be stayed because throughout the three-month period in

which he inflicted injuries on the victim, he harbored a single intent, i.e., to cause injury

to her. Therefore, he reasons, the acts alleged were part of an indivisible course of

conduct.

       The Attorney General, on the other hand, likens this case to People v. Perez

(1979) 23 Cal.3d 545 (Perez). In that case, the defendant was charged with multiple

discrete sexual offenses committed during a single 45- to 60-minute episode. (Id. at

p. 549.) The California Supreme Court held that it is simplistic to say that the defendant

acted with the single intent and objective of achieving sexual pleasure and that to do so

would preclude punishment commensurate with the defendant‟s actual culpability, in that

a person who commits an assault consisting of a single sexual offense is less culpable


                                              19
than a person who commits multiple such acts within the course of a single episode.

Moreover, each act was separate and distinct and none of the acts was “incidental to or

the means by which” another act was committed, nor did any act facilitate the

commission of any other act. (Id. at pp. 552-554.) Accordingly, the court held,

section 654 did not preclude imposition of separate punishments for each sexual act.

(Perez, at pp. 553-554.) In People v. Nubla (1999) 74 Cal.App.4th 719, the Court of

Appeal applied Perez to multiple acts of violence against a single victim, committed in a

single incident. The court held that the defendant could be punished for each count.

(Nubla, at pp. 730-731.) Based on those two cases, the Attorney General argues that each

act of infliction of injury on the victim in this case should be separately punishable under

a similar analysis. We disagree that Perez and Nubla govern this case.

       Torture can be committed either by a single act or by a course of conduct. (People

v. Hamlin (2009) 170 Cal.App.4th 1412, 1429.) Where torture is tried as a course of

conduct crime, it is not necessary that any single act in the course of conduct results in

great bodily injury. Rather, if the requisite intent exists and the cumulative result of the

course of conduct is great bodily injury, the crime of torture has been committed. (Ibid.)

This is the theory the prosecutor relied upon in this case.10 She argued that torture is not

necessarily “something that happens with one punch or . . . one strangulation, or . . . one

rape, or one sodomy or one of something.” She argued that in this case, the torture


       10 The information alleged that both count 1 and count 3 took place “on or about
August 21, 2013.” Nevertheless, the prosecutor made it clear that her theory was that the
torture was a three-month course of conduct consisting of multiple acts.

                                             20
consisted of the acts shown on the videos, as well as “how the defendant would kind of

C-clamp her throat with his hand and hold her up until she got to the point of

unconsciousness and he had to splash water on her face to wake her up, coupled with

being punched, being kicked, being tased, not having food, being left locked in a closet.

It‟s all of those things, along with the rapes and the sodomy and all of the forcible crimes.

It‟s an umbrella over all of those things.” Because, as the prosecutor argued, the offense

of torture by course of conduct consists of multiple discrete acts, all of those acts are the

means by which the charged offense was committed. This is different from cases such as

Perez, supra, 23 Cal.3d 545, in which each act, despite being part of a single episode,

was separately punishable in part because none of the acts was the means of committing

or facilitated the commission of any other offense. (Id. at pp. 553-554.) The court also

held that this treatment was necessary in order to ensure that the defendant‟s punishment

was commensurate with his actual culpability, i.e., that a person who commits multiple

sexual assaults in a single episode is more culpable than a person who commits a single

such act. (Id. at p. 553.) Here, in contrast, the individual acts, taken all together, were

the means of committing the charged offense. And, because a conviction for torture

results in a term of life imprisonment (§ 206.1), the additional four-year term for corporal

injury to a spouse is not necessary to provide punishment commensurate with the

defendant‟s




                                              21
culpability. Accordingly, section 654 precludes imposition of separate sentences on any

of the acts that were the components of the course of conduct that constituted torture.11

       The question, then, becomes whether there is any basis for concluding that the

offense charged in count 3 was not a component of the torture course of conduct.

Whether a particular offense is part of a course of conduct for purposes of section 654 is

a question of fact. (People v. Coleman (1989) 48 Cal.3d 112, 162.) In the absence of an

explicit ruling by the trial court at sentencing, we infer that the court made the finding

appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it.

(People v. Tarris (2009) 180 Cal.App.4th 612, 626-627.) Here, there was no discussion

at sentencing as to whether section 654 applied to count 3. Accordingly, we must affirm

the sentence if an implied finding that section 654 does not apply is supported by

substantial evidence. (Tarris, at pp. 626-627.)

       As the basis for count 3, the prosecutor apparently relied on the incident on

August 21, 2013, the day the victim finally fled. In that incident, defendant “smacked”

the victim on the back of her head because she was late getting one of the children ready

for school. Examining the evidence in the light most favorable to the trial court‟s ruling


       11  We have found no cases addressing this issue. In People v. Martinez (2005)
125 Cal.App.4th 1035, the court held that the individual offenses committed during a
course of conduct torture, including infliction of corporal injury on a spouse in violation
of section 273.5, subdivision (a), were not necessarily included offenses of the torture
count, either by the elements test or the pleading test. Accordingly, the court held, the
defendant could be convicted both of torture and of the individual offenses that made up
the course of conduct. (Martinez, at pp. 1041-1046.) The court did not, however,
address a contention that section 654 precluded imposition of unstayed sentences on any
of the constituent offenses.

                                             22
(People v. Tarris, supra, 180 Cal.App.4th at p. 627), we see no basis for concluding that

the final assault was either separated in time from the rest of the acts that constituted

torture or was in some other manner distinct from those acts. The victim testified to a

lengthy series of physical assaults, and there was no evidence that these assaults had

ended before August 21. The victim testified that over several months, defendant hit her

for many reasons, including not doing what he wanted her to do. On August 21, the

victim still had healing injuries on her face from prior beatings. And, the prosecutor

specifically argued that the torture consisted of the more serious acts “coupled with” such

acts as defendant hitting and punching the victim. Thus, the record supports only the

conclusion that this final act of violence was part of the entire course of conduct that

constituted torture.

       Moreover, as defendant points out, the jury was instructed that as to counts 2, 3,

and 4, the prosecution had presented evidence of more than one act that could constitute

the offense and that the jury must either unanimously agree as to the specific act that

constituted each offense or must unanimously agree that defendant committed all of the

acts alleged to have occurred during the relevant time period. The prosecutor‟s argument

was somewhat ambiguous as to whether count 3 was based on the head slap on August

21. She argued as follows:

        “Count 3, corporal injury. The defendant willfully inflicted a physical injury on

his spouse; the injury inflicted on the defendant [sic] resulted in a traumatic condition.

       “So what we‟re talking about there is a punch to the back of the head . . . . You

punch someone in the face, now you‟ve got a black eye. That‟s the traumatic condition

                                              23
or wound that we‟re talking about. You stab someone in the leg with a screwdriver, now

you‟ve got a hole in your leg. It’s any one of those things that she talked about. The way

that it‟s charged, that corporal injury is specifically going to the date of August 21st when

she talked about how he was mad at her because she was not getting the kids ready on

time and he hit her in the back of the head, told her he was gonna beat her ass when he

got back and she had a big bump on the back of her head on the day that she was beat.”

(Italics added.)

       The final sentence indicates that the prosecutor was relying on the August 21

assault as the basis of count 3. Nevertheless, taken all together, the argument is

ambiguous as to whether the jury was required to base its verdict on that act. Based on

the prosecutor‟s argument and the unanimity instruction, the jury could have relied on

literally any of the acts the victim described as part of the torture course of conduct to

find defendant guilty on count 3. Accordingly, the evidence does not support a finding

that the act underlying count 3 was in any manner distinguishable from the acts

underlying count 1.




                                              24
                                    DISPOSITION

      The cause is remanded with directions to modify the sentence to stay imposition of

sentence on count 3 pursuant to Penal Code section 654. The judgment is otherwise

affirmed.

      CERTIFIED FOR PARTIAL PUBLICATION



                                                            McKINSTER
                                                                                      J.
We concur:



HOLLENHORST
          Acting P. J.



SLOUGH
                         J.




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