Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA333281, Judith L. Champagne, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Felix Gallardo appeals from the judgment entered upon his convictions by jury of making criminal threats (Pen. Code, § 422, count 1) and stalking (§ 646.9, subd. (a), count 2). The trial court sentenced him to the upper term of three years on each count, with count 2 to run concurrently with count 1. Defendant contends that the trial court erred in failing to stay execution of sentence on one of his convictions pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise indicate.
We modify the sentence and otherwise affirm the judgment.
FACTUAL BACKGROUND
Manuel Caceres (Caceres) owned and operated a pet store with his two teenage children and sister-in-law, Laura Banuelos (Banuelos). In 2007, defendant and his then girlfriend and mother of his child, Rina Orellana (Orellana) purchased pet supplies from the store.
In February 2007, defendant came to the pet store trying to speak with Caceres. Defendant told Banuelos that he had been having problems with Orellana and was trying to make things “work out between them.” Banuelos told defendant that Caceres was not available.
One morning in late September 2007, at 7:00 a.m., defendant called Caceres’s cell phone, waking him. Defendant asked for Caceres by name and identified himself as Gallardo, the ex-husband of Orellana. He also told Caceres that Caceres had caused problems between defendant and Orellana. Caceres responded that he did not know defendant or Orellana or what defendant was talking about and that the Gallardo should handle their problems without involving him. Caceres ended the call. Defendant called back and left a message containing rap music with the lyric, in Spanish, “The stronger horse will win over the weaker one.” Caceres understood this to be a threat. Both telephone calls were from a number that appeared on Caceres’s cell phone as “restricted.”
On October 24, 2007, at approximately 8:00 p.m., Banuelos went to throw away trash in the back of the store and saw defendant wearing a sweater with a hood, “acting suspiciously” in the parking lot where Caceres’s car was parked. Shortly thereafter, neighbors reported that someone was slashing tires in the parking lot. Banuelos and Caceres went to look and saw that all four of Caceres’s tires were slashed. Defendant was no longer there, but Caceres and Banuelos saw him across the street laughing, throwing gang signs, grabbing his crotch and mimicking and pointing at them. Caceres called the police, who arrived and placed defendant in the back of the patrol car.
The next evening, Caceres was standing in the doorway of his store when he saw defendant and three or four Hispanics, with shaved heads and baggy clothes, across the street. Defendant made threatening gang signs to Caceres and challenged him to “come out with him” to fight. Defendant crossed the street and said, “If you’ve got any balls, come and we’ll talk up there.” Defendant had a knife handle sticking out of a pants pocket. Caceres responded, “I don’t know. I don’t know you and I don’t know what is going on,” and did not accept defendant’s challenge. Defendant told Caceres, an El Salvadoran, that “Mexicans had more balls than Salvadorans” and then left. Caceres feared for his and his family’s safety.
Between October 25, 2007 and mid November 2007, Caceres received “seven calls” from a restricted number “every evening,” which he did not answer. Banuelos received eight hang up telephone calls at the pet store. On at least two occasions the caller was laughing and asked for “Mr. Manuel.” These calls frightened Caceres. Caceres had never before received constant “restricted” calls on his cell phone.
In mid November 2007, defendant went to Caceres’s store where Caceres confronted him and said, “Let’s talk. Why are you accusing me of being with your ex-wife? I don’t know anything.” Caceres continued, “Look at the damage you have caused on my vehicle and my tires.” Defendant responded, “Life is worth more,” and turned around. Caceres understood this statement to be a threat.
On November 24, 2007, between 11:00 a.m. and 1:00 p.m., defendant left a message on Caceres’s cell phone with laughter and “rowdy” rap music. Defendant called again that day and left another message, with the same music playing. Defendant said, “[B]ut anyway, I hope you are enjoying your last days, you stupid jerk. Okay. We’ll just deal with this together. Goodbye.” Caceres turned the message over to police and reported the past incidents. Caceres identified defendant in a photographic six-pack.
The same day that Caceres received the threatening message, a person who looked like a gang member entered Caceres’s store, looked around, laughed, made eye contact with Caceres and left. The next day, near dark, Caceres received seven to eight telephone calls at his store. The calls, threats, and music stopped approximately three weeks later after the November 24, 2007 incident.
On December 5, 2007, defendant was arrested after being located in his apartment seated on a bed in the upstairs bedroom. Under the mattress, two notebooks and a single sheet of paper containing notes in defendant’s handwriting with numerous references to Caceres were found by police. Some of the written comments included, “If he continues, take next step,” “Meet with Manuel (fish shop owner),” “Aggressive military tactics,” and “Tactics and weapons and psychological warfare.”
Defendant testified at trial. He denied having suspicions that Orellana was dating Caceres, having had contact with Caceres before October 24, 2007, and ever telephoning Caceres. Defendant claimed that Caceres was the aggressor, who wrongly accused defendant of slashing his tires. When defendant denied doing so, Caceres swung a machete at defendant’s leg, tearing his pants, and hit him on the back with the flat side of the machete, leaving “permanent damages” on defendant’s arm and leg. Defendant claimed that police officers refused to make a report of his claim.
DISCUSSION
Defendant’s sole contention on appeal is that his sentence is unauthorized because one of his convictions should have been stayed pursuant to section 654. He argues that the two offenses were part of an “indivisible course of conduct with a single purpose or objective—frightening Caceres whom [defendant] perceived to be a suitor for [defendant’s] ex-girlfriend [Orellana].” This contention is meritorious.
Section 654 provides in 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.” (§ 654, subd. (a), italics added.) A course of conduct that constitutes an indivisible transaction violating more than a single statute cannot be subjected to multiple punishment. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.) “If all 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. Perez (1979) 23 Cal.3d 545, 551.) If, on the other hand, “the [defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)
Whether multiple convictions were part of an indivisible transaction is primarily a question of fact. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We review such a finding under the substantial evidence test (People v. Osband (1996) 13 Cal.4th 622, 730-731); we consider the evidence in the light most favorable to respondent and presume the existence of every fact the trier could reasonably deduce from the evidence. (People v. Holly (1976) 62 Cal.App.3d 797, 803.) We must determine whether the violations were a means toward the objective of commission of the other. (People v. Beamon, supra, 8 Cal.3d at p. 639.)
In this case, defendant was convicted of stalking, which requires two or more acts of willful, malicious and repeated harassment or following another person, occurring over a period of time, and a credible threat intended to place the other person in fear for his or her safety or that of his or her family. (See People v. Ibarra (2007) 156 Cal.App.4th 1174, 1195-1197, 1198; § 646.9.) A criminal threat, on the other hand, does not require a course of conduct but can occur by one discreet act. (People v. Maciel (2003) 113 Cal.App.4th 679, 682 [one element of offense is willful threat to commit a crime].)
Our review of the record discloses defendant’s criminal threat had a purpose or goal identical to the stalking. Both were for the purpose of harassing and frightening Caceres whom defendant believed was dating his ex-girlfriend. However, since the crimes do not share identical elements, neither is a necessarily included offense of the other and convictions for both offenses are proper. Nevertheless, the requirements of section 654 prohibit punishment for both crimes if the intent and objective of making the threats and the stalking were the same.
We conclude, as did the trial court and prosecutor, that section 654 is applicable. However, we differ with the trial court in concluding that a concurrent sentence is authorized. This case is similar to that of People v Mendoza (1997) 59 Cal.App.4th 1333 (Mendoza) in which the defendant was found guilty of making a threat in violation of section 422 and dissuading a witness by force or the threat of force in violation of section 136.1. There the court found that the concurrent sentence for making a criminal threat had to be stayed under section 654 because the two charges arose from a single act, and the primary objective for both of the defendant’s acts was to help his brother by preventing the witness from giving further damaging testimony against the brother. (Mendoza, supra, 59 Cal.App.4th at p 1346.)
The prosecutor and trial court were under the misimpression that section 654 prohibited only consecutive sentences rather than both consecutive and concurrent sentences.
On appeal, the People argue that section 654 does not preclude concurrent sentences where, as here, the conduct is divisible in time, during which time period the defendant was capable of reflection. In support of this position, the People cite three cases: People v. Trotter (1992) 7 Cal.App.4th 363, 368 (Trotter), People v. Kwok (1998) 63 Cal.App.4th 1236. 1252-1257 (Kwok), and People v. Harrison (1989) 48 Cal.3d 321, 329 (Harrison). We find these cases inapposite.
In Trotter, the Court of Appeal found that the defendant’s multiple shots fired at pursuing officers occurred at separate times and were therefore not subject to section 654, though each shot had the same goal of preventing the defendant’s apprehension. In Kwok, the defendant burglarized a residence, took a lock mechanism, went to a locksmith and had a duplicate key made, and replaced the lock in the residence, retaining the duplicate key to use in the future. Days later, the defendant broke into the house and assaulted the resident. The appellate court concluded that section 654 did not preclude sentencing for the first burglary (not the burglary in which the assault occurred) and the assault because the acts were divisible in time. Finally, in Harrison, our Supreme Court concluded that the defendant could be punished for multiple acts of sexual digital penetration when he inserted his finger in his victim’s vagina in rapid succession when it came out as she struggled. In all of these cases, the criminal acts were discreet and complete when committed. In the case before us, stalking requires a course of conduct over time, with multiple acts. Thus, stalking cannot be completed instantaneously but requires a period of time over which numerous, separate acts constituting the offense must occur.
DISPOSITION
The judgment is corrected to modify the sentence to stay imposition of the sentence on count 2 pursuant to section 654. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment.
We concur: BOREN, P. J., DOI TODD, J.