Filed 8/26/13 P. v. McClain CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047168

                    v.                                                 (Super. Ct. No. 08HF1870)

ROBERT AVERY McCLAIN,                                                  OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Gary S.
Paer, Judge. Affirmed.
                   Eric R. Larson, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.


                                             *               *               *
              A jury found defendant Robert Avery McClain guilty of aggravated
mayhem (Pen. Code, § 205; all further statutory references are to this code; count 1);
torture (§ 206; count 2), forcible oral copulation (§ 288a; count 3); attempted sexual
penetration by a foreign object by force (§§ 289, subd. (a)(1), 664; count 4); spousal rape
by force (§ 262, subd. (a)(1); count 5); sodomy by force (§ 286, subd. (c)(2); count 6);
false imprisonment as a lesser included offense of kidnapping to commit a sex offense (§
236; count 7); and inflicting injury on a spouse resulting in traumatic injury (§ 273.5,
subd. (a); count 8). It also found true allegations he personally used a knife and firearm
in committing count 1, a knife in committing count 2, a firearm in committing counts 3,
4, 5, and 6, and that in committing count 8, he personally inflicted great bodily injury.
              The court sentenced defendant to two consecutive indeterminate life terms,
two consecutive 15 years to life terms, plus an additional 19 years and 8 months. He
contends his sentences for aggravated mayhem and false imprisonment should have been
stayed under section 654. We conclude no error occurred and affirm the judgment.


                                          FACTS


              In September 2008, defendant‟s wife (wife) told him she wanted a divorce.
Defendant, a sheriff‟s deputy, asked if she was seeing another man and she eventually
admitted she was. At defendant‟s request, wife took him to meet her lover, Michael,
around 10 p.m.
              When Michael opened the door, defendant escorted him outside and led
him and wife to the leasing office where wife worked and made her open the door. Once
inside, defendant confronted Michael, asking “„How many times did you sleep with my
wife?‟”




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              Michael took one step toward the door before defendant punched him in the
face so hard that his head hit the ground and he appeared unconscious. Defendant got on
top of Michael and repeatedly punched him in the head, causing Michael‟s body to
convulse. When wife attempted to stop defendant, he punched and kicked her.
Defendant then returned to punching and kicking Michael, who remained unconscious
and did not move, saying, “„You are fucking my wife,‟” and “„Get up. Get up.‟”
              Wife tried to call for help but defendant threw her on the ground and ripped
the phone out of the wall. When she tried to grab her cell phone out of her pocket,
defendant grabbed it and beat her some more. Michael was still unconscious. At times
he would appear to regain consciousness and try to get up but defendant punched and
kicked him until he passed out again.
              After beating Michael for about 15 to 20 minutes, defendant noticed a
tattoo on Michael‟s arm and pulled out two guns and a knife from his pockets. Stating he
was going to kill Michael, defendant started beating him on the head with one of the
guns. Defendant then took the knife and sliced Michael‟s arm where the tattoo was, as
well as his face, causing blood to gush and Michael to moan.
              When wife attempted to stop defendant, he punched her and sliced her face.
She reminded him of their four children and his job as a police officer, but defendant
replied, “„It‟s over. I am going to serve at least 15 years for this.‟” Defendant removed
Michael‟s shirts and pants, slashed his chest and inner thighs, and plunged his knife into
the groin area, causing blood to appear through Michael‟s underwear. Defendant
thereafter took off Michael‟s underwear, slashed his penis with the knife while
continuing to punch him, then flipped him over and dug the knife into Michael‟s anus.
When Michael screamed, defendant stuffed his underwear into his mouth.
              After forcing wife to orally copulate both himself and Michael, defendant
placed the knife in her vagina and began cutting her, stating, “„If I go away for 15 years,
nobody else is going to have you.‟” When Michael started groaning, defendant moved

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towards him and wife ran for the door. She was able to open it and scream before
defendant pulled her back inside.
              Upon dragging wife back into the leasing office, defendant urinated on both
her and Michael before slicing Michael‟s face with the knife and placing a gun in his
mouth to prop his head up. Defendant gave the gun to wife, telling her there was only
one bullet inside and to shoot either him or Michael. Wife aimed between them and
pulled the trigger three times, but there was only a clicking sound. She then pointed the
gun at defendant and pulled the trigger but again the gun did not go off. Enraged,
defendant grabbed the gun and hit wife with the butt of the gun.
              Defendant went back to Michael and punched him until he fell down,
whereupon he grabbed Michael around the neck, strangling him and hitting his head
against the ground. Handing the knife to wife, defendant told her to cut off Michael‟s
penis, but she told him the knife was too dull so he forced her at gunpoint to stab Michael
in the penis, although she tried to only graze him.
              Defendant eventually agreed to leave but had wife tie up Michael. Before
leaving, defendant told wife he would kill Michael if she tried to run or scream. He led
her to the car and had her sit in the passenger seat, instructing her not to try to get out.
Defendant started to drive to their home but changed his mind and drove in the opposite
direction. He said wife made him do this and that he thought he had killed Michael.
              Ultimately, he drove to a secluded residential area, put the barrel of the gun
to her temple and threatened to kill her. He used the knife to cut off her hair and slice her
face, stating, “„You think you are so pretty. Nobody is going to think you are pretty after
this.‟” After telling her to take off her pants and saying, “„I‟m going to jail for a long
time and I‟m going to have sex with you before I do,‟” defendant sodomized and
vaginally raped wife. When defendant finished, wife jumped into the back seat and
opened the car door but he grabbed her hand; wife vomited outside the car.



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              Defendant began driving toward their Irvine apartment. Upon arriving
home, he forced wife take a shower and write a letter stating she cheated on him. He
choked her, calling her a whore and a bitch and stating she was selfish and that
everything was her fault. Defendant called wife‟s sister and told her wife had cheated on
him. Wife screamed “„help‟” and ran out the front door but defendant caught her and
knocked her out.
              Wife woke up on the couch of their apartment. When defendant fell asleep,
she woke the children and tried to leave the apartment but an alarm beeped, waking
defendant up. Although he ordered everyone back inside, wife sent the children, who
were crying because of her appearance, to the car. Defendant allowed them to drive
away, but asked wife to promise she would bring them to visit him in prison because he
was “„go[ing] away for a long time.‟”
              Wife drove to the emergency room. The next morning, police found
Michael standing in the break room, naked and unresponsive and had him transported to
the hospital. Defendant was arrested.


                                        DISCUSSION


1. Introduction and Relevant Legal Principles
              Defendant contends his concurrently imposed sentences on counts 1
(torture) and 7 (false imprisonment) should have been stayed under section 654.
              “„Section 654 precludes multiple punishments for a single act or indivisible
course of conduct.”‟ (People v. Galvez (2011) 195 Cal.App.4th 1253, 126 (Galvez).
When it applies, “the accepted „procedure is to sentence defendant for each count and
stay execution of sentence on certain of the convictions to which section 654 is
applicable.‟” (People v. Jones (2012) 54 Cal.4th 350, 353.) “„Whether a course of
criminal conduct is divisible and therefore gives rise to more than one act within the

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meaning of section 654 depends on the intent and objective of the actor. If all of the
offenses were incident to one objective, the defendant may be punished for any one of
such offenses but not for more than one.‟” (People v. Correa (2012) 54 Cal.4th 331,
336.) “[A] course of conduct divisible in time, though directed to one objective, may
give rise to multiple convictions and multiple punishment „where the offenses are
temporally separated in such a way as to afford the defendant opportunity to reflect and
renew his or her intent before committing the next one . . . .‟” (People v. Lopez (2011)
198 Cal.App.4th 698, 717-718.) “„If . . . 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.”‟” (Galvez, at pp. 1262-1263, italics added.) “A trial court‟s [express
or] implied finding that a defendant harbored a separate intent and objective for each
offense will be upheld on appeal if it is supported by substantial evidence.” (People v.
Blake (1998) 68 Cal.App.4th 509, 512.)


2. Aggravated Mayhem
              Defendant‟s sentence included two consecutive life terms for his
convictions on counts 1 (aggravated mayhem) and 2 (torture). He contends his sentence
for aggravated mayhem must be stayed because the acts upon which it was premised, i.e.,
cutting Michael‟s face and penis with the knife, were encompassed within the acts
constituting the torture charge, which was based on everything defendant did to Michael
in the leasing office and both offenses “were committed with the same intent and
objective of inflicting pain and damage upon Michael.” We disagree.
              Aggravated mayhem requires the prosecution to prove the defendant
intended to permanently disable or disfigure the victim. (See People v. Quintero (2006)
135 Cal.App.4th 1152, 1162 [“Aggravated mayhem is a specific intent crime which

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requires proof the defendant specifically intended to cause the maiming injury, i.e., the
permanent disability or disfigurement”].) Torture on the other hand requires “„specific
intent to cause cruel or extreme pain and suffering for revenge, extortion or persuasion or
any sadistic purpose.‟” (People v. Burton (2006) 143 Cal.App.4th 447, 451-452.)
              In determining section 654 did not bar sentencing on both aggravated
mayhem and torture, the court found persuasive the prosecutor‟s argument defendant
“formed the separate intent and objective for each offense.” For mayhem, the prosecutor
argued, and the court agreed, that defendant slashed Michael‟s face and genitalia with the
intent to permanently disfigure him “because he knew Michael was the object of [wife‟s]
desire.” That this was defendant‟s intent is supported by the fact that while he was
slicing Michael‟s face, defendant asked, “„You like fucking my wife, Michael?‟”
Additionally, just before stabbing Michael‟s groin area, defendant said to wife, “„Look at
this white boy. You are cheating on me with this? This is what you are leaving me
for?‟” Then while he continued slashing Michael‟s penis, defendant queried, “„This is
pathetic. Look how small he is. And you are leaving me for this[?]‟”
              By contrast, in addition to finding “defendant had the time to reflect and
consider his actions,” the court endorsed the prosecutor‟s claim that defendant‟s intent in
committing torture for revenge was “to emotionally and physically damage Michael in
the three-hour ordeal in side the leasing office.” As stated by the court, defendant did this
“by punching him about the face and body, kicking him, stomping on his chest, placing a
gun to his head, threatening to kill him, shoving a knife inside his rectum, stripping him
of his clothes, placing the barrel of the gun into his mouth, yelling and screaming at
Michael, binding him with a strap, urinating on him, forcing [wife] to orally copulate
him, and leaving Michael bleeding for nearly six hours after the beating.” The record
confirms these acts occurred, which, as the court found, “go well beyond the slashing of
Michael‟s face and groin.” Given that the prosecutor made these arguments in the trial
court, defendant‟s claim this was not how the case was tried lacks merit.

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              The evidence also substantiates the court‟s determination defendant had
time between offenses to reflect and consider his actions. In People v. Trotter (1992) 7
Cal.App.4th 363 (Trotter), the defendant was convicted of three counts of assault for
firing three shots at a police officer who was following him in a freeway chase. The first
two shots were about a minute apart, and the third shot came a few seconds later. The
defendant argued that all three shots could not be punished separately under section 654
because they “manifested the same intent and criminal objective.” (Trotter, at p. 367.)
Trotter rejected the argument, stating that “this 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. „[D]efendant
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.)
              Similarly, here, defendant punched and kicked Michael for 15 to 20
minutes before pausing when he noticed the tattoo on Michael‟s arm. At that point, he
took out his knife, along with his guns, and began slicing Michael‟s arm, face, and
subsequently stabbing him in the groin. Defendant then changed gears and had wife
orally copulate himself and Michael before placing the knife in her vagina, stating, “„If I
go away for 15 years, nobody else is going to have you.‟” Only after that did defendant
resume the acts the court found constituted the torturing of Michael. As in Trotter,
defendant‟s commission of the acts constituting aggravated mayhem and torture were
separated by periods during which he had time to reflect on his actions.
              Because substantial evidence supports the court‟s finding defendant had
two distinct criminal objectives, which were independent of and not merely incidental to
each other, section 654 does not prohibit separate punishments for the aggravated
mayhem and torture. (See People v. Assad (2010) 189 Cal.App.4th 187, 200 [torture and

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aggravated mayhem against same victim but based on different acts not part of same
course of conduct].) Defendant distinguishes Assad on the basis it involved “multiple
different incidents occurring on multiple different days . . . .” That may be, but as Trotter
demonstrates, a defendant may be independently punished for crimes “separated by
periods of time during which reflection was possible” (Trotter, supra, 7 Cal.App.4th
368), notwithstanding their commission on the same day, within a short time period, and
the sharing of common acts. (People v. Galvez, supra, 195 Cal.App.4th at p. 1263.) The
court found that to be the case and we will not reweigh the evidence.


3. Felony False Imprisonment
              Although defendant was charged in count 7 with kidnapping to commit
spousal rape, the jury found him not guilty of that charge and the lesser included offense
of simple kidnapping, but guilty of the lesser included offense of felony false
imprisonment. The court sentenced defendant to 15 years to life on count 5 (spousal
rape) and 8 months for count 7 (false imprisonment). In sentencing defendant for the
false imprisonment, the court explained it was a separate crime from domestic battery,
which occurred when wife “was prevented from leaving the car” or arguably when “she
was prevented from leaving the leasing office.”
              Defendant contends the sentence on count 7 should have been stayed under
section 654 because it “was necessarily incidental to [his] sentence for spousal rape in
[c]ount [5].” Defendant cites the prosecutor‟s argument that count 7 was based on his
acts of forcibly moving wife from the leasing office, driving her in his car for a
substantial distance without her consent, and then pulling the car over and raping her.
Defendant reasons that, since the jury rejected the kidnapping to commit spousal rape and
simple kidnapping charges, both of which require nonconsensual movement, the guilty
verdict on count 7 “demonstrates that the jury found [him] guilty of the lesser included
offense of felony false imprisonment by forcibly detaining her inside the car while he

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raped her on the side of the road.” We also note the prosecutor‟s argument in its
sentencing brief with regard to count 7 that wife “was prevented from leaving or escaping
their car during the drive from the leasing office to the city of Corona and back to their
apartment in Irvine.”
              Even so, defendant‟s argument ignores the court‟s finding the false
imprisonment arguably occurred when defendant prevented wife from leaving the leasing
office. When wife attempted to flee from the leasing office, defendant grabbed her arm
to pull her inside and wrapped his arm around her neck, dragging her back to the leasing
office and threatening to kill her if she tried to leave. Before they left the leasing office,
defendant stated he would “blow Michael‟s head off” if she tried to run or scream.
Defendant then led wife to the car, holding her arm and, after placing her in the
passenger‟s set, told her not to try to get out. After driving to a secluded area, defendant
raped wife, stating, “„I‟m going to jail for a long time and I‟m going to have sex with you
before I do.‟” These facts support the court‟s implicit finding defendant harbored two
separate intents and objectives: falsely imprisoning wife to prevent her from running
away and getting help, and forcibly raping her in the car because it was going to be a long
time before he had sex again. (See People v. Saffle (1992) 4 Cal.App.4th 434, 438-440.)
They also sustain an implied finding the false imprisonment was not incidental to the
spousal rape, which was separated by a time period allowing for reflection after the false
imprisonment in the leasing office. (See People v. Surdi (1995) 35 Cal.App.4th 685, 689
[section 654 inapplicable where crimes “did not arise from a single volitional act
[but] . . . were separated by considerable periods of time during which reflection was
possible”]; People v. Trotter, supra, 7 Cal.App.4th at p. 368 [same].)
              Defendant asserts the court‟s finding the false imprisonment could have
been based on his detention of wife in the leasing office was “flawed” because he was not
charged with that in count 7 but “with kidnapping for spousal rape based on wife‟s
transportation in the vehicle, and the jury found [him] to only have committed the lesser

                                              10
included offense of felony false imprisonment based on that conduct.” But the
“application of section 654 does not depend on the allegations of the charging
instrument, but on what was proven at trial.” (People v. Assad, supra, 189 Cal.App.4th at
p. 200.) Additionally, absent “some circumstance „foreclosing‟ its sentencing
discretion . . . 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. . . . After all, a court may even rely
on facts underlying verdicts of acquittal in making sentencing choices.” (People v.
McCoy (2012) 208 Cal.App.4th 1333, 1340.)
              Even if the trial court was required to accept and rely upon the same theory
asserted by the prosecution (see People v. Coelho (2001) 89 Cal.App.4th 861, 876; see
also People v. Jones (2012) 54 Cal.4th 350, 359 [concluding Court of Appeal properly
refused to rely on an argument not previously argued]), the prosecutor‟s closing argument
raised the possibility of false imprisonment premised on the events in the leasing office.
The prosecutor discussed defendant‟s actions after he and wife left the leasing office in
the context of the element of movement necessary to establish the offense of kidnapping
to commit spousal rape. In doing so, the prosecutor noted that prior to being taken to the
car wife had been beaten in the office for nearly three hours and warned, “„If you run, I‟ll
kill you. If you scream, I‟ll blow Michael‟s head off.‟” This, along with the evidence,
was sufficient to place the issue of false imprisonment in the leasing office before the
jury.
              Moreover, even if we limit our review to the prosecutor‟s arguments to the
jury and in his sentencing brief, the court‟s implied finding of separate intents and
objectives was still supported by substantial evidence. In People v. Foster (1988) 201
Cal.App.3d 20 (Foster), the defendants were convicted of robbery and false
imprisonment and sentenced to consecutive terms for those offenses. Foster rejected the
claim section 654 barred separate punishment on false imprisonment, concluding “[t]he
imprisonment of the victims occurred after the robbers had obtained all of the money,

                                              11
and therefore was not necessary or incidental to committing the robbery.” (Foster, at p.
27.) It added that the false imprisonment was “analogous to a needless or vicious assault
committed after a robbery . . . .” (Ibid.)
              Similarly, here, the evidence shows that after raping wife, defendant
prevented her from leaving the car. His false imprisonment of her was not merely
incidental to the spousal rape but continued after defendant had finished raping her.
Based on this evidence, the court could have reasonably concluded defendant continued
to detain wife after the rape in order to prevent her from reporting his crimes. Because
the evidence is sufficient to sustain a finding defendant falsely imprisoned wife pursuant
to an objective that was independent of the spousal rape, separate punishment was not
proscribed by section 654.


                                       DISPOSITION


              The judgment is affirmed.




                                                  RYLAARSDAM, J.

WE CONCUR:



O‟LEARY, P. J.



IKOLA, J.




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