Opinion
A132462
07-19-2012
THE PEOPLE, Plaintiff and Respondent, v. GEORGE WASHINGTON CLARK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. 214612)
Appellant George Washington Clark appeals the sentence imposed following his conviction for felony false imprisonment (Pen. Code, § 236) and for making criminal threats (§ 422). He contends the trial court violated section 654 when it failed to stay his conviction for false imprisonment. We modify the decision of the trial court and stay the sentence for false imprisonment under section 654.
All undesignated section references are to the Penal Code.
In appellant's opening brief, he summarily raised a due process issue under the Fourteenth Amendment to the United States Constitution. This argument, however, was never developed further. "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]" (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) In any event, since we rule in favor of appellant on the section 654 issue, we need not address the due process argument.
FACTS AND PROCEDURAL HISTORY
Appellant was convicted by a jury of the crimes of making criminal threats and false imprisonment in violation of sections 422 and 236, respectively. He was sentenced to the upper term of three years for the criminal threats and given a consecutive sentence of eight months for the false imprisonment. Appellant filed a timely notice of appeal.
The offenses for which appellant was convicted were committed against Valerie Kindle on August 10, 2010. In June 2010, Kindle, a former girlfriend of appellant, had agreed to let him stay with her. On August 10, Kindle and appellant were drinking and playing cards in her apartment. The phone rang, Kindle answered, and appellant asked her who the call was from and told her to get off the phone. Appellant then snatched the phone from her, threw it against the wall, picked up a hammer and told her "to sit down or he was going to bash [her] brains in." She complied and sat down.
Kindle testified that she took appellant's threats seriously because she was very afraid, he was holding a hammer, and he had thrown a knife at her in a previous confrontation. Kindle then called 911 but hung up. When the operator called back, appellant answered, threw the phone against the wall, "backhanded" her a couple of times, and stabbed her in the arm with a rusty nail. Kindle finally managed to escape her apartment and encountered the police responding to her aborted 911 call.
Thereafter, on December 21, 2010, Kindle and appellant were drinking and playing cards when appellant went into a rage. Kindle testified that appellant hit her in the face multiple times, causing her to get stitches above her left eyebrow and adversely affecting the vision in her right eye. On January 25, 2011, appellant was arrested and charged with offenses from both incidents. From the August 10, 2010 incident, appellant was charged with domestic violence (§ 273.5, subd. (a); count 4), making criminal threats (§ 422; count 6), assault with a deadly weapon—not a firearm (§ 245, subd. (a)(1); count 7), assault with force likely to cause great bodily injury (§ 245, subd. (a)(1); count 8), and false imprisonment (§ 236; count 9). From the December 21 incident, appellant was charged with domestic violence (§ 273.5, subd. (a); count 1), assault with force likely to produce great bodily injury (§ 245, subd. (a)(1); count 2), battery with serious bodily injury (§ 243, subd. (d); count 3), and making criminal threats (§ 422; count 5). Personal infliction of great bodily harm (§ 12022.7, subd. (e)) was alleged as to counts 1 and 2.
The information alleges counts 1, 2, and 3 occurred on December 22, 2010.
During trial, the prosecution requested and the court granted dismissal of count 7. On May 4, 2011, the jury convicted appellant of counts 6 and 9. The jury failed to reach a verdict on the remaining counts and, as to those counts, the trial court declared a mistrial. At sentencing, the court rejected appellant's argument that a consecutive sentence was barred by section 654, concluding, "[T]he threat was very specific, and it was different than the circumstances involving the false imprisonment."
DISCUSSION
Appellant contends the court violated section 654 because it failed to stay his conviction for false imprisonment. Section 654, subdivision (a) states, "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." "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. [Citations.] 'We must "view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" [Citation.]' [Citation.]" (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.)
Section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.]" (People v. Deloza (1998) 18 Cal.4th 585, 591.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. 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." (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on other grounds by People v. Correa (2012) 54 Cal.4th 331, 334, fn. 1; accord, People v. Britt (2004) 32 Cal.4th 944, 951-952; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1345.) "On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were part of an otherwise indivisible course of conduct. [Citations.]" (People v. Perez (1979) 23 Cal.3d 545, 551-552; accord, In re Jose P (2003) 106 Cal.App.4th 458, 469; People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Were the offenses committed by appellant committed pursuant to a single intent and objective? Appellant contends the offenses of criminal threats and false imprisonment committed against Kindle were the result of one continuous course of conduct with only one objective: the threat to Kindle was the mechanism by which he prevented her from leaving. He contends that the prosecutor admitted this in his closing argument when he argued that the false imprisonment charge "goes to what [appellant did to Kindle] with the hammer back in August [2010]," which occurred at the same time as his threat against her. We agree. To commit the section 422 violation, appellant had to make Kindle reasonably fear for her safety, which he did by holding a hammer over her and threatening to "bash [her] brains in." To commit the section 236 violation, appellant had to display sufficient menace to dissuade Kindle from attempting to escape, which he accomplished by making the criminal threat. Kindle's testimony that she only attempted to escape after appellant put down the hammer confirms this conclusion.
False imprisonment can also be committed with violence, fraud, or deceit. However, in this case the prosecution did not allege appellant committed fraud or deceit, and the judge did not instruct the jury on those issues. The jury was instructed on the element of violence but did not find sufficient evidence to convict appellant of false imprisonment by violence.
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DISPOSITION
The judgment is ordered modified to reflect that the eight-month consecutive sentence for the false imprisonment (§ 422) conviction is stayed pursuant to section 654. As so modified, the judgment is affirmed. The superior court is ordered to send a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
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SIMONS, J.
We concur.
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JONES, P.J.
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NEEDHAM, J.