Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. James L. Quaschnick, Judge, Super. Ct. No. F06905403
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez, and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Procedural History
The original complaint in this case was filed on June 20, 2006, and alleged that appellant Anthony Marcel Beard committed the following offenses: corporal injury of a spouse (count one); kidnapping (count two); false imprisonment by violence (count 3); criminal threats (count 4); and dissuading a witness by force or threat (count 5). The complaint also charged, with respect to the corporal-injury charge, an infliction-of-great-bodily-injury enhancement (Pen. Code, § 12022.7, subd. (e)), and that Beard had suffered five prior felony convictions within the meaning of section 667.5, subdivision (b). At the July 3, 2006, preliminary hearing, the victim, Verina Attaway, failed to appear, and the magistrate found insufficient evidence to hold Beard to answer on the great-bodily-injury enhancement.
All further references are to the Penal Code unless otherwise noted.
On July 18, 2006, the court dismissed the original complaint at the request of the People. The People refiled the complaint the same day and a second preliminary hearing was held on August 1, 2006. Attaway appeared and testified. Nonetheless, the magistrate again found that insufficient evidence supported the great-bodily-injury enhancement. The People filed an information in superior court, charging the great-bodily-injury enhancement. Beard’s subsequent section 995 motion challenging the enhancement was denied.
The jury convicted Beard of corporal injury, kidnapping, and false imprisonment (counts 1, 2, and 4). The jury was unable to reach a verdict on counts 3 and 5. The court declared a mistrial with respect to these counts and ultimately they were dismissed. The jury also found true the great-bodily-injury allegation. Beard admitted his five prior felony convictions.
Beard was sentenced to a total term of 14 years 8 months in state prison. He was sentenced to the upper term of four years for the corporal injury count, plus four consecutive years for the great-bodily-injury enhancement, a consecutive one-year eight-month mid-term for the kidnapping count, and a concurrent two-year mid-term for the false-imprisonment count. The sentence included an additional five-year consecutive term for the prior convictions.
Factual Summary
In the early hours of June 13, 2006, Jennifer Perez heard an unknown woman, later determined to be Attaway, screaming for help. Perez looked outside and saw Beard slam Attaway’s head against a car door and punched her in the head, back, and breasts. Attaway fell to the ground. Then, Perez saw Beard kick Attaway in the head and stomach. Perez called 911. When Perez went outside, Beard drove away in a blue vehicle. Perez spoke with Attaway who was crying and appeared to be distressed. After talking to the 911 operator, Perez handed the phone to Attaway. Attaway told the operator that she had been beaten up by Beard, and that she had a prior relationship and a child with him. She said Beard had forced her into the car earlier, and when she jumped out, he followed her, hit her, and tried to choke her. Attaway suffered a number of injuries, including bruises, scrapes, and a perforated eardrum. She sought medical attention the day after the attack, with complaints of pain, nausea, vomiting, and dizziness. She told medical personnel her “significant other” had beaten her up. Beard was later arrested while driving a blue car.
Attaway proved to be a reluctant witness. She failed to show up at the first preliminary hearing, ignoring her subpoena. Although she testified at the second preliminary hearing, she claimed to have no memory of the assault. She remembered getting into the car with Beard, the nature and extent of her injuries and talking with Perez, but she recalled nothing about how she obtained her injuries. She did remember that Beard had threatened her after the assault, but failed to recall what she told investigating officers about the assault. Attaway did not testify at trial, despite numerous attempts to serve her with a subpoena.
Discussion
I. Section 1387
Beard contends that, pursuant to section 1387, the great-bodily-injury enhancement could not be refiled after both magistrates had concluded there was insufficient evidence to hold Beard to answer on the enhancement. (In re Williams (1985) 164 Cal.App.3d 979, 982-983 [failure or refusal to hold, even without formal order of dismissal, constitutes termination of action under § 1387].) The People argue that the issue has been forfeited and if not, the third refiling was permitted under sections 1387, subdivision (a)(3), and 1387.1.
First, we conclude the issue has not been forfeited. Whether the statute precluded refiling was raised in the section 995 motion. The court commented that the first dismissal was due to the failure of a witness to appear, which goes to the applicability of section 1387, subdivision (a)(3), and concluded the great bodily injury enhancement was not precluded by the prior dismissals. We are not considering the issue for the first time on appeal. (See People v. Vera (1997) 15 Cal.4th 269, 275 [rule is that appellate courts generally will not consider issues raised for first time on appeal; trial court should be given opportunity to correct any errors].)
Second, we agree with the trial court’s implicit finding that, because the first dismissal was based on the failure of a material witness to appear, section 1387 did not bar the inclusion of the enhancement in the information filed in this case. Section 1387 provides: “An order terminating an action pursuant to … Section … 871, or 995, is a bar to any other prosecution for the same offense if it is a felony … and the action has been previously terminated pursuant to … Section … 871, or 995 .…” This is the two-dismissal rule, which applies to enhancements as well as to causes of action. (People v. Carreon (1997) 59 Cal.App.4th 804, 809-810.) The basic purpose of the section is to limit improper successive prosecutions, which harass a defendant. (People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 743-744).
The People do not dispute that there were two prior dismissals of the enhancement, but argue that the statutory exceptions to section 1387 allowed a third filing. Section 1387, subdivision (a)(3), is the pertinent exception here. It provides that the bar against a third refiling does not apply in those felony cases in which, subsequent to the dismissal of the felony, the judge or magistrate finds “[t]hat the termination of the action was the result of the failure to appear by the complaining witness, who has been personally subpoenaed in a prosecution arising under subdivision (e) of Section 243 or Section 262, 273.5, or 273.6.” The felony in this case arises out of section 273.5. The victim, although subpoenaed, failed to appear at the original preliminary hearing. Although the magistrate did not specifically find that the failure of proof on the great-bodily-injury enhancement was due to Attaway’s failure to appear, we deduce from the record that this was the court’s conclusion since the finding is formalized in the order signed on July 18.
A finding at a preliminary hearing that there is insufficient evidence to support an enhancement is the equivalent of a dismissal. (In re Williams, supra, 164 Cal.App.3d at pp. 982-983.)
The order dismisses the original action and states that the dismissal of the first complaint was sought and ordered because the “personally subpoenaed Victim failed to appear at the Preliminary hearing resulting in an inability to ask for holding order on all charged crimes.” Although the dismissal order was signed by another judge, the order and finding refer to Attaway’s failure to appear at the first preliminary hearing. The order is consistent with the representations of counsel at the first preliminary hearing about the difficulty of proving the medical injuries absent the victim and without sufficient time to obtain medical records prior to the preliminary hearing date.
Given this record, we conclude the necessary finding pursuant to section 1387, subdivision (a)(3), was made and the two-dismissal rule does not apply to preclude a third filing of the great-bodily-injury enhancement.
II. Sufficiency of the evidence
Beard challenges the sufficiency of the evidence to support the great-bodily-injury enhancement. In order to succeed, he must establish that no rational jury could have concluded as it did. The rules require us to evaluate the evidence in the light most favorable to the People and to presume in support of the judgment every fact a jury could have reasonably deduced from the evidence. (See People v. Rayford (1994) 9 Cal.4th 1, 23.) If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding. (People v. Escobar (1992) 3 Cal.4th 740, 750.) Section 12022.7, subdivision (f), expressly defines great bodily injury for purposes of the enhancement as “a significant or substantial physical injury.” It is not a trivial injury. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) Section 12022.7 contains “no specific requirement that the victim suffer ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.” (People v. Escobar, supra, at p. 750.)
We conclude there is sufficient evidence to support the enhancement. Attaway suffered a number of bruises all over her body and experienced facial swelling and a bump on her temple. She experienced significant pain in her ear, as well as in her head, neck, and back—she hurt all over. She was nauseous, dizzy, and vomiting. Attaway suffered a perforated eardrum, resulting in hearing loss and significant pain for at least 24 hours. The treating nurse practitioner categorized the perforated eardrum as a moderate to severe injury requiring follow-up care.
The lack of a permanent or long-lasting injury does not preclude a finding of great bodily injury. For example, in People v. Mixon (1990) 225 Cal.App.3d 1471, 1489, the victim was strangled, leaving a red mark around her neck and causing her nose to bleed. She was also struck on the back of the head leaving a large bump and causing her momentarily to lose consciousness. Her eyes were red, her face was bruised, and she was covered with blood from her nose. She described the pain as excruciating. This evidence was sufficient to support the great-bodily-injury enhancement despite no long-term injuries. In People v. Lopez (1986) 176 Cal.App.3d 460, 465, one victim was shot in the buttocks and the other in the thigh. The first victim did not feel any pain, but fell to the ground, was disoriented and screamed. The second victim described feeling a burning sensation in the thigh. This again was sufficient evidence to support a great-bodily-injury enhancement. Likewise, in People v. Nitschmann (1995) 35 Cal.App.4th 677, 680, 683, evidence that the victim was punched in the face and had his head rammed into a car door, causing a large gash on his face and profuse bleeding, was sufficient. Finally, in People v. Adcock (1964) 231 Cal.App.2d 136, 139-140, the defendant assaulted the victim in her car, beat her with his fists, blackening her eyes and fracturing her nose and an eardrum. The court found great bodily injury.
Each situation is apt to be slightly different from the next. The only requirement is that the jury find the nature of the injury to be significant and substantial. (§ 12022.7, subd. (f).)
III. Sixth Amendment right to confront witnesses
Beard contends the trial court erred in admitting hearsay evidence in the form of the 911 call, the testimony of Officer Mendoza concerning Attaway’s statements at the scene, the testimony of Detective Hunt concerning his investigative interview with Attaway, and the transcript of Attaway’s preliminary hearing testimony. He also contends he was denied his Sixth Amendment right to confront witnesses.
A. 911 tape
Beard contends the admission of the 911 tape, admitted pursuant to Evidence Code section 1240 as a spontaneous declaration, violated the Sixth Amendment confrontation clause under the rule established by Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We disagree.
The United States Supreme Court has clarified that statements to a 911 operator solicited to enable the police to meet an emergency are not “testimonial” within the meaning of Crawford. (Davis v. Washington (2006) 547 U.S. 813 (Davis); see also People v. Corella (2004) 122 Cal.App.4th 461, 469 [preliminary questions asked at scene of crime shortly after it has occurred do not rise to level of interrogation].) “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis, supra, 547 U.S. at p. 822, fn. omitted.) The primary purpose of the 911 call and the statements elicited by the emergency dispatcher were to enable the police to resolve the present emergency. Attaway was “seeking aid, not telling a story about the past.” (Id. at p. 831.)
When Attaway came to Perez and was put on the phone, Attaway was still emotionally distraught. Beard had just driven off. Attaway was not at her home, she was on an unknown street, late at night and vulnerable. The 911 operator was attempting to obtain information to allow the police to respond to Perez’s call and to resolve the present emergency. It was imperative for the operator to discover the perpetrator’s identity; where he was or had gone; whether he was under the influence; whether he had a weapon; and whether there were children with him. The operator asked all these questions. In addition, although Attaway declined an offer of medical assistance, the operator knew that Attaway had just suffered a serious beating and needed to verify that Attaway did not actually need medical attention.
The call falls squarely within the parameters set by Davis. The statements were not testimonial, and their admission under a hearsay exception did not violate the Sixth Amendment confrontation clause.
B. Preliminary hearing transcript and statements to police
Beard does not identify which statements to the police he is objecting to, nor does he point to any objection to this evidence made in the trial court. Since he raises a related ineffective-assistance-of-counsel claim, we will address the merits of the issue. (People v. Williams (1998) 61 Cal.App.4th 649, 657.) We will assume Beard is objecting to the testimony of Officer Mendoza and Detective Hunt about statements Attaway made to them.
“A criminal defendant has the right under both the federal and state Constitutions to confront the witnesses against him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.)” (People v. Wilson (2005) 36 Cal.4th 309, 340.) In Crawford, the United States Supreme Court held that, before testimonial hearsay evidence may be admitted, the Sixth Amendment “demands what the common law required”: unavailability and a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 68; see also People v. Seijas (2005) 36 Cal.4th 291, 303; People v. Smith (2003) 30 Cal.4th 581, 609; Evid. Code, § 1291.) The prior preliminary hearing transcript and the statements made to police during their investigation of the crime are testimonial in nature. Beard claims they should not have been admitted because Attaway was not unavailable at trial due to the fact the prosecution did not make reasonable attempts to subpoena her. He further claims that, even if she were unavailable, he did not have a prior opportunity for meaningful cross-examination because Attaway was unable to remember much of what happened the night of the assault. The trial court resolved both issues against Beard. We agree with the trial court.
Evidence Code section 1291 provides that evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is (1) unavailable as a witness, and (2) the party against whom the former testimony is offered had the right and opportunity to cross-examine the declarant with a similar interest and motive. Beard’s interest and motive at the preliminary hearing in cross-examining Attaway was the same as it would have been had she testified at trial: to attack the credibility of her prior inconsistent statement to police.
First, a witness is unavailable if she is absent from the hearing and the proponent of her statement has been unable to procure attendance at trial through use of the court’s process and reasonable diligence. (Evid. Code, § 240, subd. (a)(5).) Reasonable diligence means perseverance, untiring efforts in good earnest, and/or efforts of a substantial character. (People v. Cromer (2001) 24 Cal.4th 889, 904.) The proponent of the evidence has the burden of establishing unavailability. (People v. Cummings (1993) 4 Cal.4th 1233, 1297.) We independently review the trial court’s determination whether the efforts to locate Attaway were sufficient to justify an exception to Beard’s constitutionally guaranteed right of confrontation under the Sixth Amendment. (People v. Cromer, supra, at p. 901.) We will not, however, reverse the trial court’s determination simply because in hindsight there were additional steps that could have been tried to obtain Attaway’s attendance at trial. (People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
Prior to finding Attaway unavailable, the trial court conducted an extensive evidentiary hearing. It discovered that a subpoena had been mailed to Attaway’s residence in January 2007, in accordance with Code of Civil Procedure section 1328d. Attaway knew about the trial. The People made a total of 10 attempts to serve Attaway at her residence over a period of six days at different times of day. There was no question that this was Attaway’s current correct address. In addition, the district attorney’s investigator talked with Attaway’s son and mother on separate occasions, leaving copies of the subpoena with them. He left business cards in her mailbox, which he knew were received, because Attaway called in response to one of them. The investigator told Attaway that she needed to report to trial and he wanted to serve her, but Attaway was evasive and refused to tell him when she would be home. She said she would call when she returned home, but did not. In addition, the investigator checked with the jail visitation logs to see whether Attaway was visiting Beard, in order to determine if service could be effectuated at the jail, and checked with the school that Attaway claimed she was attending, only to discover that Attaway was not a student there. The deputy district attorney and the investigator both made numerous phone calls to the numbers they had for Attaway but no one answered. Attaway was evading service.
Similar efforts have been found to constitute due diligence. (See People v. Wilson, supra, 36 Cal.4th at p. 341 [due diligence found when investigator made efforts over two days to locate witness, including visiting his last known address, attempting to locate known associates, and checking police, county, and state records to find location]; People v. Diaz, supra, 95 Cal.App.4th at pp. 705-706 [due diligence where prosecution made five attempts to personally serve; spoke to mother and brother of witness; checked with schools witness had attended; made telephone calls to mother and brother; checked local hospitals, Dept. of Motor Vehicles, and recent arrests; victim did not want to testify because of fear of retaliation].)
In addition, Beard had a meaningful opportunity to cross-examine Attaway at the preliminary hearing, despite her feigned forgetfulness. The right of confrontation does not protect against “testimony that is marred by forgetfulness, confusion, or evasion.” (Delaware v. Fensterer (1985) 474 U.S. 15, 22 [confrontation clause generally satisfied when defense is given opportunity to expose infirmities of testimony through cross-examination, calling to attention of fact-finder reasons why witness’s testimony should be discredited]; accord, United States v. Owens (1988) 484 U.S. 554, 557-560 [when hearsay declarant present at trial and subject to unrestricted cross-examination, traditional protections of oath, cross-examination, and opportunity for jury to observe witness’s demeanor satisfy constitutional requirements].) “[The] unwilling witness often takes refuge in a failure to remember.” (3A Wigmore, Evidence (Chadbourn rev. ed. 1970) § 1043, p. 1061, fns. omitted.)
Even though Attaway claimed she could not remember the assault, she did remember getting in the car with Beard, finding herself talking with Perez in a strange locale, suffering from unexplained injuries, visiting the hospital in search of medical care for those injuries and receiving threats from Beard after the assault. She also remembered talking to police officers, although she did not remember what she said. Therefore, this case is distinguishable from those cited by Beard in which the witness claimed no recollection or refused to testify at all. (People v. Simmons (1981) 123 Cal.App.3d 677, 681 [declarant had retrograde amnesia and could not remember ever making statement to police; issue was whether prior written statement was admissible].) Despite her selective inability to remember the assault, Attaway was on the stand and subject to cross-examination. (People v. O’Quinn (1980) 109 Cal.App.3d 219, 228-229 [inability to remember does not preclude opportunity to cross-examine or denial of confrontation rights].) There was no Sixth Amendment violation in admitting Attaway’s preliminary hearing testimony.
IV. Exclusion of Nutt testimony
At trial, the defense called Beard’s sister, Chermane Nutt. In an Evidence Code section 402 hearing, Nutt testified that Attaway was very jealous of other women in Beard’s life and had “recently” found out that another woman was pregnant with Beard’s child. The court excluded the evidence on the ground that it was irrelevant and inadmissible hearsay. On appeal, Beard claims the evidence should have been admitted and excluding it prevented him from presenting a defense, violating the state and federal Constitutions.
Contrary to the assertions in the briefing, the testimony considered at the hearing establishes that Attaway discovered the pregnancy just “recently.” When asked to clarify, Nutt responded that it was a “couple months ago.” A fair reading of this testimony is that Attaway discovered the pregnancy just a couple of months before trial, which occurred in March of 2007. There is no evidence that Attaway was aware of the pregnancy at the time of the assault, when she reported the incident to the 911 operator, Officer Mendoza, or Detective Hunt, or when she testified at the preliminary hearing. The pregnancy could therefore in no way provide a motive for the statements made by Attaway earlier. The trial court correctly excluded the evidence regarding the pregnancy because it was not relevant. (Evid. Code, §§ 210, 351.)
The remaining evidence concerning Attaway’s jealous nature may have been relevant to her motives. It was not hearsay, since it described actions presumably observed by Nutt (although this was not fully fleshed out at the hearing). Nutt testified that the “whole time” Attaway and Beard were a couple, Attaway would exhibit jealousy by taking Beard’s phone to get the numbers of other women and asking Beard who they were and whether he was with them. In any event, if this evidence should have been admitted, any error in excluding it is harmless beyond a reasonable doubt, using the more stringent constitutional standard of review set forth in Chapman v. California (1967) 386 U.S. 18, because Beard has framed this issue as a constitutional challenge. There was strong evidence that Beard assaulted Attaway and that this was not a trumped-up charge of a woman scorned. There was an eyewitness to the violent attack who called 911 and assisted Attaway immediately following the assault. Attaway made spontaneous statements to the 911 operator immediately after the attack implicating Beard as her attacker. Attaway’s injuries were observed and documented by medical experts. Attaway admitted in sworn testimony that she was with Beard the night of the attack and that she suffered significant injuries. Even if the jury had heard evidence that Attaway was jealous and angry with Beard, it is highly unlikely they would have believed Attaway fabricated the attack. We conclude the result would not have been different.
V. Battered Woman’s Syndrome evidence
Beard also contends that the court erred in admitting the Battered Woman’s Syndrome testimony of expert witness Katie Quinn-Crask. Quinn-Crask testified primarily about the cycle of violence evident in domestic violence cases and that it is not uncommon for victims to recant or feign memory loss in order to deny or minimize violent acts by their domestic partner. On cross-examination, Quinn-Crask admitted that she had never met Attaway and had no personal knowledge about whether Attaway suffered from the syndrome.
This type of evidence is admissible in California upon a foundational finding of relevancy (Evid. Code, § 1107, subd. (b)) to explain that it is common for people who have been physically and mentally abused to act in ways that may be difficult for a layperson to understand. (People v. Riggs (2008) 44 Cal.4th 248, 293.) General testimony by an expert on the tendency of domestic violence victims to recant is necessary to disabuse the jury of a commonly held misperception—that victims of crimes will not normally lie to protect the perpetrator. (People v. Williams (2000) 78 Cal.App.4th 1118, 1129.) Recanting is common even after a first incident and is not limited to cases in which abuse has extended over a significant period of time. (Ibid.) As Beard concedes, our state Supreme Court has rejected the view that there must be evidence of past abuse over a period of time before syndrome evidence is allowed. The court held that if independent evidence of domestic violence exists to provide foundation for the expert’s testimony about how victims of domestic violence behave, the evidence is admissible even in the absence of prior abuse. (People v. Brown (2004) 33 Cal.4th 892, 908.)
The foundation for Quinn-Crask’s testimony is provided by evidence that Attaway was in a relationship with Beard, they had a child together, and he beat her up. Perez testified that she saw Beard assault Attaway. Attaway admitted she was with Beard the night she was injured. She told the police and medical personnel that Beard had beaten her up. She admitted Beard threatened her after the assault. This is more than sufficient to provide the necessary foundation for Quinn-Crask’s testimony. (People v. Brown, supra, 33 Cal.4that p. 908.)
VI. Cumulative error/claims of ineffective assistance of counsel
Having found no error of significance, we reject Beard’s claim that the fairness of his trial was impacted by cumulative error. We likewise reject Beard’s claim that he was denied effective assistance of counsel in the admission of Attaway’s preliminary hearing transcript and her statements to law enforcement. Since the evidence was admissible, there can be no prejudice in failing to raise an objection to its admission. (People v. Cox (1991) 53 Cal.3d 618, 656 [if no prejudice, it is unnecessary to consider whether counsel’s performance was deficient], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390.)
VII. Lesser-included offense
Beard contends, and the People concede, that false imprisonment is a lesser-included offense of kidnapping and, therefore, Beard cannot be convicted of both. We accept the concession based on well-settled California law. (See People v. Shadden (2001) 93 Cal.App.4th 164, 171; People v. Chacon (1995) 37 Cal.App.4th 52, 65.) The conviction on count 4 must be dismissed.
VIII. Section 654
Beard claims that section 654 precludes sentencing on the corporal assault offense and the kidnapping offense because the two were “intimately interconnected acts.” Beard claims the kidnapping allowed the corporal injury of Attaway and the corporal injury was used to effectuate the kidnapping. We disagree and conclude there is no error in sentencing Beard on both counts.
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 does not prevent multiple convictions for the same conduct, only multiple punishments. (People v. Perez (1979) 23 Cal.3d 545, 551.) “The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
The evidence supports the trial court’s findings that the kidnapping and the corporal injury offenses were motivated by independent objectives. Beard started hitting Attaway after she left the car and after the initial kidnapping was complete. There is no evidence that Beard kidnapped Attaway to take her to this location in order to beat her. Whatever Beard’s objective was at the time of the initial kidnapping, his assault of Attaway after she left the car was not incidental to it; the kidnapping was already complete. (People v. Beamon (1973) 8 Cal.3d 625, 639 [if second offense not merely incidental to first and supported by independent criminal objectives, defendant may be punished for independent violations committed in pursuit of each objective even though violations share common acts or were parts of indivisible course of conduct].)
DISPOSITION
The convictions on counts 1 and 2 are affirmed. The matter is remanded for the trial court to dismiss count 4 and to resentence on counts 1 and 2.
WE CONCUR: Levy, J., Cornell, J.