Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge, Los Angeles County Super. Ct. No. NA069734
Linn Davis, 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, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General and Joseph P. Lee, Deputy Attorney General for Plaintiff and Respondent.
MANELLA, J.
Appellant Brounche Stephan Green was found guilty of five offenses arising from a single incident in which he physically attacked and terrorized his cohabitant, Trista Abdullah-Raheem, and her children: (1) corporal injury to a cohabitant; (2) assault by means of force likely to produce great bodily injury; (3) making a terrorist threat; (4) dissuading a witness; and (5) false imprisonment. Because appellant was a third-strike offender, the trial court sentenced him to five consecutive life sentences. On appeal, he contends: (1) the court was required to give a unanimity instruction because the terrorist threat and dissuading a witness charges were supported by multiple, discrete acts; (2) the court was required to stay sentence on certain of the charges under Penal Code section 654; and (3) the sentence imposed represents cruel and unusual punishment. We conclude that the sentences on two of the charges should have been stayed and otherwise affirm.
Unless otherwise indicated, all statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by information with corporal injury to a cohabitant, Abdullah-Raheem (§ 273.5, subd. (a)) (count one); assault by means of force likely to produce great bodily injury, also on Abdullah-Raheem (§ 245, subd. (a)(1)) (count two); making a terrorist threat to Abdullah-Raheem (§ 422) (count three); dissuading a witness, Abdullah-Raheem’s child, Markalo Kidd (§ 136.1, subd. (b)(1)) (count four); and false imprisonment of Abdullah-Raheem (§ 236) (count five). It was further alleged that appellant suffered two prior convictions for a serious or violent felony for purposes of section 1170.12, subdivision (a) through (d) and section 667, subdivision (b) through (i), and that for purposes of section 667.5, he suffered a prior conviction, served a prison term, and did not remain free from prison custody for five years.
A. Evidence at Trial
Because appellant’s arguments on appeal are based in part on differences in the testimony, we discuss each witness’s testimony separately.
The prosecution’s principal witness was Abdullah-Raheem. She testified that on December 26, 2005, she was living with appellant in an apartment in Long Beach. Also residing there were Abdullah-Raheem’s three sons, Markalo Kidd, age ten, Derrick, age seven, and Amir, age four. Abdullah-Raheem was five-months pregnant at the time. Appellant was not the father of any of the children.
On the day in question, Abdullah-Raheem and appellant had been arguing for hours. Appellant accused her of cheating on him with other men and with a woman, Abdullah-Raheem’s best friend. They also argued about appellant’s drinking, about money, and about Abdullah-Raheem’s ex-husband, who had been by the apartment earlier in the day to drop off Amir. At various times during the day, appellant said he was the “Angel of Death,” that Abdullah-Raheem was a “snake,” that she meant nothing to him, that the baby she was expecting meant nothing to him, and that he intended to kill her. On more than one occasion, he also told her to shut the children up, or he would shut them up.
Abdullah-Raheem went to the kitchen to make tea “to sober [appellant] up.” She also began cutting up oranges with a knife. Appellant came into the kitchen, grabbed her arm and neck, and pushed her forward, twisting her arm. He took the knife from her hand and threw it, almost hitting Amir.
After the incident in the kitchen, Abdullah-Raheem put on her scarf and started toward the front door with her children. She told appellant she and the children were leaving to let him cool down. Appellant said “You ain’t going to leave. You are not going” and told her if she walked out the door or tried to leave, he would kill her. She said “‘Okay, watch me’” and continued toward the door. Appellant grabbed her by the hair and threw her against the wall and they started physically fighting. Markalo told appellant to stop. Appellant threw Abdullah-Raheem to the floor and started to choke her. Abdullah-Raheem passed out. When she woke up, she was wet. Later, Markalo told her appellant had thrown water on her and hit her face, and that he (Markalo) had tried to call the police, but appellant had knocked the telephone from his hand.
After Abdullah-Raheem regained consciousness, Markalo ran outside to try to get help. Appellant ran after Markalo and brought him back into the apartment and locked the door. Appellant took Abdullah-Raheem into the bathroom to run more water on her face. He repeated that he would kill her if she left.
At first, Abdullah-Raheem said appellant picked Markalo up and carried him back into the apartment, but later admitted she had not seen that occur.
Abdullah-Raheem found the telephone in two pieces and tried to put it back together. Abdullah-Raheem’s mother called shortly after the incident. She told Abdullah-Raheem to get out of the apartment. Abdullah-Raheem could not leave because appellant was following her around the apartment, even when she went to the bathroom, continuing to say she was a snake and that he did not care about her, but that she could not leave. Eventually, Abdullah-Raheem convinced appellant to lie down to watch a movie and he fell asleep. Abdullah-Raheem grabbed some papers in preparation for leaving the apartment for good. Her mother called again and said she would call the police.
After Abdullah-Raheem and her boys left the apartment, police officers approached her. They took her back to the apartment and stayed with her. They then took her to the hospital because she was having contractions and her face was swollen.
The social worker at the hospital where Abdullah-Raheem was treated testified to the presence of bruising on her neck and cheek.
After the incident, Abdullah-Raheem moved out of state. In January 2006, she received a telephone call from appellant. He asked her not to testify and told her she did not have to testify. Later, a friend of appellant’s called her and said essentially the same thing.
Markalo Kidd testified that appellant choked Abdullah-Raheem, slammed her against a wall, slapped her, and threw her on the floor. Appellant said he was going to punch her face, cut her, and cut the baby. After Abdullah-Raheem passed out, appellant tried to wake her up by throwing water on her and slapping her. Before she passed out, Abdullah-Raheem told Markalo to call 911. He tried, but appellant knocked the telephone out of his hand. The telephone hit the wall and the batteries fell out. Markalo ran outside to try to convince the neighbors to call 911, but they did not speak English. Appellant told him to come back inside the apartment. Markalo acquiesced because he wanted to stay with his mother. When Abdullah-Raheem regained consciousness, she told the children they were going to leave after appellant fell asleep.
2. Defense Evidence
Appellant, who represented himself at trial, called five co-workers. They testified that he had a good character, that he caused no problems at work, and that as far as they were aware, he had a good relationship with Abdullah-Raheem and no problems with women in general.
Appellant also called Officer Jonathan Calvert of the San Bernardino Police Department, one of the officers who spoke with Abdullah-Raheem after she left the apartment with her children. He remembered Abdullah-Raheem was shaken and crying, but did not remember if she was wet. He did not see any marks on her. Abdullah-Raheem told the officer that when she and appellant were in the kitchen, she brandished a knife to get appellant to let her go. Abdullah-Raheem also told the officer that appellant had drunk two medium-sized bottles of brandy.
Another witness called by appellant was his probation officer, Taliuta Vilimau. Vilimau interviewed Abdullah-Raheem and was also told that Abdullah-Raheem brandished a knife at appellant and that appellant had been drinking heavily on the day of the incident.
Abdullah-Raheem told Vilimau that appellant drank four bottles.
3. Rebuttal
To rebut the evidence of appellant’s good character, the prosecution presented evidence that appellant had prior convictions for robbery, possession of narcotics for sale, and shooting at an inhabited dwelling, as well as a prior misdemeanor conviction for domestic violence.
4. Pertinent Argument
In closing argument, the prosecutor stated that with respect to count one (domestic violence), “the People have proven that [appellant] not only choked [Abdullah-Raheem], but he slapped her and also slammed [her] on the ground . . . .” She further stated that the bruises on Abdullah-Raheem’s neck and her swollen face or facial contusions supported the injury element of the offense. Turning to count two (assault by means of force likely to produce great bodily injury), she stated: “That’s proven by the fact [appellant] choked, slapped, and slammed [Abdullah-Raheem] to the ground. . . . ¶¶ [Appellant] committed an assault likely to produce great bodily injury . . . ¶ [because] he choked [Abdullah-Raheem] to the point that she blacked out for an indeterminate amount of time . . . .”
In arguing the evidence to support count three (terrorist threat), the prosecutor referred to the evidence that appellant had said to Abdullah-Raheem: “‘I’m going to cut your baby out if you leave me. I’m going to kill you.’”
With respect to count four (attempt to dissuade a witness), the prosecutor discussed the evidence that appellant attempted to prevent Markalo from calling the police by “knocking the phone from Markalo’s hand.” Later, the prosecutor said that although “[appellant] did several things to make sure that the cops were not contacted,” the jury’s “reliance on convicting [appellant] on this charge should probably lean more toward [Markalo’s] testimony.” The prosecutor further argued that the following evidence supported that appellant had the specific intent to dissuade Markalo when he struck the telephone from his hand: (1) the evidence that the phone was disabled and appellant made no attempt to fix it; (2) the evidence that “when [Markalo] trie[d] to run out of the house to talk to the neighbors about how his mother is being assaulted by [appellant,] he, basically, [got] Markalo back into [the] apartment”; and (3) the evidence that appellant followed Abdullah-Raheem around the apartment “to make sure she [was] not trying to call the police.”
Finally, with respect to count five (false imprisonment), the prosecutor discussed the evidence that Abdullah-Raheem wanted to leave the apartment with her children and said: “We learned [why she did not;] because [appellant] grabbed her back . . . .”
5. Verdict and Sentencing
Appellant was found guilty on all counts. After the second phase of trial, the jury found that appellant had suffered prior convictions for violation of the following statutes: section 246 (shooting at an inhabited dwelling) in April 1993; Health and Safety Code section 11350, subdivision (a) (possession of controlled substance) in March 1994; Health and Safety Code section 11378 (possession for sale) in October 1996; and section 211 (robbery) in October 2002.
The court sentenced appellant to 25 years to life for count one, with consecutive 25-year-to-life sentences for each of counts two, three, four and five. The court also imposed a one-year consecutive sentence for each of the three special allegations.
DISCUSSION
A. Unanimity Instruction
Appellant contends that the trial court should have given a unanimity instruction sua sponte because as to both count three (terrorist threat) and count four (dissuading a witness), the prosecution relied on more than one set of facts. With respect to count three, appellant contends “there was evidence that, on more than one occasion, appellant threatened to kill Abdullah-Raheem . . . [t]here was also evidence that appellant threatened to punch Abdullah-Raheem in the face, and also that he had threatened to cut her unborn baby.” With respect to count four, appellant contends “[t]here was also evidence that Markalo ran outside to get help, but . . . appellant brought him back inside the apartment before he could . . . do so.”
See CALJIC 17.01: “The defendant is accused of having committed the crime of _____ [in Count _____]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count _____] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count _____], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.”
It is clear that “a jury verdict must be unanimous” and that “the jury must agree unanimously the defendant is guilty of a specific crime.” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Accordingly, “cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] ¶ This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citations.]” (Ibid.; accord, People v. Deletto (1983) 147 Cal.App.3d 458, 472 [unanimity instruction prevents the jury from “amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count”].)
The need for a unanimity instruction arises “[w]hen an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act . . . .” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The duty to give the instruction “rests upon the court sua sponte.” (Ibid.) A unanimity instruction is not required, however, when the prosecutor makes an election, that is, “select[s] the acts relied on to prove the charges” and communicates that election to the jury. (People v. Jones (1990) 51 Cal.3d 294, 307; see People v. Melhado, supra, 60 Cal.App.4th at p. 1539.) To effectively communicate an election to the jury, the prosecutor’s statement must be made with as much clarity and directness as a judge’s statement would be in giving instruction. (Ibid.) “The record must show that by virtue of the prosecutor’s statement, the jurors were informed of their duty to render a unanimous decision as to a particular unlawful act.” (Ibid.)
“Neither an election nor a unanimity instruction is required when the crime falls within the ‘continuous conduct’ exception.” (People v. Salvato (1991) 234 Cal.App.3d 872, 882, quoting People v. Diedrich (1982) 31 Cal.3d 263, 281.) “‘This exception arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction . . . . [Citation.] The second is when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time. [Citation.]’” (People v. Salvato, supra, at p. 882, quoting People v. Thompson (1984) 160 Cal.App.3d 220, 224.)
With these principles in mind, we turn to appellant’s contention that under the evidence presented, multiple, discrete threats supported count three. A terrorist threat is established by evidence that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . be taken as a threat, even if there is no intent of actually carrying it out.” (§ 422.) The threat must be “on its face and under the circumstances in which it is made . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat” and “thereby cause[] that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety.” (Ibid.)
Although the evidence established that appellant made numerous menacing or potentially threatening statements to Abdullah-Raheem throughout the day, the only threat sufficiently unequivocal, unconditional, immediate, and specific to rise to the level of a terrorist threat occurred when she put on her scarf and attempted to walk out the door with her children. Abdullah-Raheem testified that appellant said: “‘You ain’t going to leave. You are not going’” and told her if she walked out the door or tried to leave, he would kill her. Markalo reported hearing appellant say he was going to punch Abdullah-Raheem’s face, cut her, and cut the baby. Whether different statements were made or whether the two witnesses simply remembered the same statements differently, it is clear that the statements were made during the brief period between Abdullah-Raheem’s attempt to walk out the door with her children and appellant’s physical attack which left her unconscious. The prosecutor treated the threats as one, urging the jury to convict because appellant said “I’m going to cut your baby out if you leave me. I’m going to kill you.” Under the “one transaction” rule, the two threats were part of the same incident.
Moreover, the “one transaction” rule is generally said to apply “when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) Appellant did not ask the jury to distinguish between the different statements reported by the witnesses. Appellant’s defense was the same to all of the charges: Abdullah-Raheem was lying and had persuaded Markalo to back her up. Under the circumstances, there was no basis for the jury to distinguish between the different threatening statements and no error in failing to give a unanimity instruction for purposes of ensuring juror unanimity on count three.
With respect to appellant’s claim that evidence of more than one discrete act supported count four (dissuading a witness), the record reflects that the prosecution made a clear election that the support for this count came from appellant’s act of knocking the telephone from Markalo’s hand as he tried to call for help for his unconscious mother. Although the prosecutor mentioned other actions undertaken by appellant, including the evidence that he persuaded Markalo to return to the apartment after seeking help from the neighbors, and that he followed Abdullah-Raheem around the apartment, the prosecutor stressed that such evidence merely supported the element of specific intent needed to establish that appellant did not have some other motive for knocking the telephone away. The prosecutor specifically told the jury to rely on Markalo’s testimony rather than Abdullah-Raheem’s. Because the prosecutor made a clear election, there was no need to give a unanimity instruction to clarify the jury’s obligation with respect to count three.
As discussed, Abdullah-Raheem testified that appellant forcibly carried Markalo back into the apartment when he attempted to summon aid from the neighbors, but later conceded she did not see that happen. Markalo testified that he returned voluntarily when appellant called him, in order to stay near his mother.
B. Section 654
Penal Code 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.” (§ 654, subd. (a).) Appellant contends that the trial court disregarded section 654, and that with respect to the four offenses against Abdullah-Raheem (counts one, two, three, and five), three of the life sentences should have been stayed because “[a]ppellant’s actions in grabbing, shoving, threatening, slapping, choking, and restraining Abdullah-Raheem comprised a continuous course of conduct [and] . . . were all committed in furtherance of appellant’s overarching objective of terrorizing her.” Appellant alternatively contends that the offenses charged in counts one and two (corporal injury to a cohabitant and assault with force likely to produce great bodily injury) represented a single offense or course of criminal conduct for purposes of section 654, and that the offenses charged in counts three and five (terrorist threat and false imprisonment) similarly represented a single offense or course of criminal conduct. We conclude that appellant’s four offenses against Abdullah-Raheem were pursuant to two independent objectives and the court should, therefore, have stayed two of the sentences under section 654.
The purpose of section 654 “is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute, and thus constitutes more than one crime. The distinct crimes may be charged in separate counts in one proceeding, or may be tried together by consolidation of separate criminal proceedings, and may result in multiple guilty verdicts. But the sentence may be for only one offense . . . .” (3 Witkin & Epstein, Criminal Law (3d ed. 2000) Punishment, § 129, pp. 191-192, italics omitted.) “Thus the act of placing a bomb into an automobile to kill the owner may form the basis for a conviction of attempted murder, or assault with intent to kill, or malicious use of explosives. Insofar as only a single act is charged as the basis for the conviction, however, the defendant can be punished only once.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
Courts recognize, however, that “[f]ew if any crimes . . . are the result of a single physical act.” (Neal v. State of California, supra, 55 Cal.2d at p. 19.) When the defendant’s actions comprise a lengthy course of conduct, the more difficult question that arises is “[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 . . . .” (Ibid.) The answer to that question depends on the intent and objective of the defendant: “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.” (Ibid.)
It follows that “[t]he initial inquiry in any section 654 application [involving a course of criminal conduct] is to ascertain the defendant’s objective and intent.” (People v. Beamon (1973) 8 Cal.3d 625, 639.) “If he 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.” (Ibid.) In In re Hayes (1969) 70 Cal.2d 604, where the defendant was convicted of driving with an invalid license and driving while intoxicated, the court cautioned against “confus[ing] simultaneity with identity[.]” (Id. at p. 607.) “[T]he two simultaneous -- but distinct -- criminal acts of driving with a suspended license and driving while intoxicated share the common, noncriminal act of driving. On the date in question [the defendant’s] act of driving was criminal and simultaneously violated two statutes because and only because of the presence of both the unrelated accompanying acts of voluntary intoxication and knowing possession of a suspended license. Similarly, for example, if an individual went for a walk in possession of a loaded gun while he was intoxicated and unclothed, he would by the single neutral act of walking -- or, more accurately, being in a ‘public place’ -- simultaneously violate three separate and unrelated statutes. [Citations.] Those three statutes, however, would be violated not by the one noncriminal act of being in a public place but necessarily by three simultaneous though separate criminal acts . . . . [W]e must distinguish identical noncriminal acts from simultaneous criminal acts ‘made punishable’ by law.” (Id. at pp. 607-608, fns. omitted.) The proper approach, “is to isolate the various criminal acts involved, and then to examine only those acts for identity.” (Id. at p. 607.)
Resolving whether the defendant held multiple criminal objectives presents a question of fact and the trial court’s finding, “if supported by any substantial evidence, will be upheld on appeal.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) To support the trial court’s finding, “‘there must be evidence to support [that] the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]’s” (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Appellant’s physical assault on Abdullah-Raheem consisted of multiple acts -- throwing her against the wall, throwing her to the floor, choking her, and slapping her face. The information charged appellant with both corporal injury to a cohabitant under section 273.5 (count one) and assault with force likely to produce great bodily injury under section 245 (count two). The corporal injury charge required proof of “wound or . . . injury . . . caused by a physical force.” (§ 273.5, subd., (c).) The assault charge required evidence that serious bodily injury would likely result from the force applied. (See, e.g., People v. Russell (2005) 129 Cal.App.4th 776, 787-788.) Although proof of actual injury is not required for the section 245 charge (ibid.), the fact that serious injury did result from the force applied indirectly supports that charge. (See, e.g., People v. Conley (1952) 110 Cal.App.2d 731, 733, 737 [“evidence was sufficient to sustain the implied finding that the force used was one which was likely to produce great bodily injury” where defendant pushed victim “with such force that he struck his head against [a] parking meter[,] fell to the sidewalk” and spent 20 days in the hospital].)
To support the actual “wound or . . . injury” element of count one and the force element of count two, the prosecution relied on Abdullah-Raheem’s unconsciousness and the subsequent bruising of her neck, both caused by the choking. Absent this injury, the charges would have been difficult to establish. The jury would have been obliged to consider whether by throwing Abdullah-Raheem against the wall or to the floor, appellant used force “likely” to result in serious injury or whether those acts alone caused actual wound or injury. It is by no means clear that the jury would have concluded in favor of the prosecution on these points. Proof that the defendant pushed the victim to the ground is not necessarily sufficient for conviction under section 245. (See In re Ronnie N. (1985) 174 Cal.App.3d 731, 735; People v. Bertoldo (1978) 77 Cal.App.3d 627, 633-634.) Abdullah-Raheem testified to a separate injury that might have supported the section 273.5 offense -- her face was swollen after the attack -- but the jury could have believed this was caused by appellant’s misguided attempts to revive her, rather than the assault itself. By urging the jurors to disregard the separate acts and rely on appellant’s assaultive actions as a whole in determining whether the crimes in counts one and two were committed, the prosecutor avoided these difficult factual issues. Weak support for the elements of injury and force from the other assaultive acts was bolstered by the clear evidence of serious injury caused by the choking. As the prosecutor urged the jury to rely on all appellant’s assaultive actions to support both counts one and two, respondent cannot now insist that these were two separate and distinct offenses for purposes of sentencing and section 654, or that the trial court could reasonably have so found. (See People v. Siko (1988) 45 Cal.3d 820, 825-826 [where defendant convicted of both rape and lewd conduct, Attorney General could not rely on theory that independent acts supported basis for lewd-conduct conviction where “no showing that the lewd-conduct count was understood in this fashion at trial”].) Accordingly, sentence on one of the two counts should have been stayed.
Respondent contends that the situation is similar to that in People v. Nubla (1999) 74 Cal.App.4th 719, where the defendant, who assaulted his wife, was convicted under both section 273.5 and section 245 and the court of appeal upheld imposition of separate punishments for each offense. There, however, the evidence was clear that the defendant (1) threw his wife down on the bed, bloodying her nose, and (2) pushed a gun into her mouth, cutting her lip and chipping a tooth. (74 Cal.App.4th at p. 723.) The separate acts of pushing her and assaulting her with a firearm were not “‘incidental’” to each other; nor did one act “facilitate” the other. (Id. at p. 731.) Unlike here, each act fully supported all the elements of a separate offense, and the prosecution had no need to rely on a single injury or application of force to support essential elements of both charges. Accordingly, Nubla is not relevant.
We apply the same analysis to determine whether the separate punishments imposed for counts three (terrorist threat) and five (false imprisonment) represent multiple punishment for a single act or omission under section 654 or whether the act of threatening Abdullah-Raheem represented an act in pursuit of a criminal objective independent of the objective of the false imprisonment charge. To answer that question, we first review the elements of each crime. As we have seen, the crime of making a terrorist threat requires a willful threat to commit a crime which will result in death or great bodily injury, made with the specific intent that the statement be taken as a threat. (§ 422.) In addition, the threat must be “so unequivocal, unconditional, immediate and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat” and “thereby cause[] that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety.” (Ibid.) The crime of false imprisonment requires for its commission “some intended confinement or restraint of the person. . . . Any exercise of force or express or implied threat of force by which in fact the person is restrained from his liberty, compelled to remain where he does not wish to remain, or to go where he does not wish to go, is such imprisonment. The imprisonment may be committed by acts or words merely operating on the will of the individual and/or by personal violence.” (People v. Haney (1977) 75 Cal.App.3d 308, 313.)
With respect to the crime of making a terrorist threat, the jury was instructed: “Every person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement made . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which threat, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety is guilty of a violation of Penal Code section 422, a crime.”
With respect to the crime of false imprisonment, the jury was instructed: “Every person who by violence violates the liberty of another person by intentionally and unlawfully restraining, confining, or detaining that person and compelling that person to stay or go somewhere without her consent is guilty of the crime of false imprisonment by violence or menace in violation of Penal Code section 236. ¶ Violence means the exercise of physical force used to restrain over and above the force reasonably necessary to effect the restraint. ¶ Menace means threat of harm, express or implied by word or act.”
As the crime of false imprisonment can be committed by issuing a threat of force, it is apparent that a single threat could support both a conviction for felony false imprisonment and making a terrorist threat. The question is whether that occurred here. We conclude it did and that the trial court could not reasonably have found otherwise. There was, as discussed, evidence of multiple potential threats or menacing statements by appellant over the course of the day. However, only the threats issued when Abdullah-Raheem attempted to leave the apartment were the subject of the prosecutor’s argument in favor of conviction on count three. Moreover, although Abdullah-Raheem testified that throughout the day, appellant made statements, such as that he was the “Angel of Death,” that Abdullah-Raheem was a “snake” or a “nothing,” and that he intended kill her, it was only the combination of physical assault and serious threat issued when she tried to leave the apartment that compelled her to remain. Until that point, she felt free to go, as evidenced by her testimony that she put on her scarf, gathered her children, and started to leave. After the assault and threat, she felt sufficiently trapped that she told the children they could not leave until appellant fell asleep. It is apparent, therefore, that the same threat or combination of threats supported both count three and count five; accordingly, section 654 applies.
We next address appellant’s contention that all four offenses involving Abdullah-Raheem were committed with the “overarching objective of terrorizing her,” and that therefore the imposition of sentence on three of the four counts must be stayed. We disagree. We can readily identify two distinct criminal objectives of appellant’s conduct -- to physically assault Abdullah-Raheem and to restrain her from leaving by threatening her with death. While both crimes may have served to -- and been intended to -- “terrorize” Abdullah-Raheem, the evidence demonstrates appellant committed separate criminal acts with two distinct criminal objectives. The threats designed to prevent her from leaving were independent of the assault, the acts were not incidental to each other, and neither act facilitated the other. In sum, while the actions supporting the assault charges in counts one and two were not separable for purposes of section 654, and the actions supporting the threat charge in count three and the false imprisonment charge in count five are similarly indivisible, the court was not compelled to stay three of the four sentences for the offenses involving Abdullah-Raheem.
C. Cruel and Unusual Punishment
Finally, we address appellant’s claim that the total term of imprisonment imposed constituted cruel and unusual punishment. “Cruel and unusual punishment is prohibited by the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity.” (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fns. omitted.) “Our Supreme Court has emphasized ‘the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned “unless their unconstitutionality clearly, positively, and unmistakably appears.”’ (People v. Wingo (1975) 14 Cal.3d 169, 174, fn. omitted.)” (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.)
Both California and federal courts have consistently rejected claims that lengthy terms imposed on recidivists violate the cruel and unusual punishment ban. (Harmelin v. Michigan (1991) 501 U.S. 957, 965; Rummel v. Estelle (1980) 445 U.S. 263, 284; People v. Ruiz (1996) 44 Cal.App.4th 1653, 1661-1665; People v. Cooper (1996) 43 Cal.App.4th 815, 820; People v. Kinsey, supra, 40 Cal.App.4th at pp. 1630-1631; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137.) “Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses. [Citation.]” (People v. Cooper, supra, 43 Cal.App.4th at pp. 823-824.) “[A]t some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies” society may be justified in “segregat[ing] that person from the rest of society for an extended period of time.” (Rummel v. Estelle, supra, 445 U.S. at p. 284.) “This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.” (Id. at pp. 284-285.)
Although California’s Three Strikes law is “‘among the most extreme’ in the nation, that factor ‘does not compel the conclusion that it is unconstitutionally cruel or unusual.’” (People v. Sullivan (2007) 151 Cal.App.4th 524, 572, quoting People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) “California is not required ‘to march in lockstep with other states in fashioning a penal code. It does not require “conforming our Penal Code to the ‘majority rule’ or the least common denominator of penalties nationwide.” [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct.’” (Ibid.) In Lockyer v. Andrade (2003) 538 U.S. 63 and Ewing v. California (2003) 538 U.S. 11, the United States Supreme Court upheld the constitutionality of sentences imposed under California’s Three Strikes law under the following circumstances: (1) in Andrade, the most recent convictions were for petty theft, the prior strikes consisted of three residential burglaries, and the defendant was sentenced to two consecutive terms of 25-years to life; and (2) in Ewing, the most recent conviction was for grand theft (a wobbler), the prior strikes consisted of three residential burglaries and a robbery, and the defendant was sentenced to 25-years to life. The court approved a state’s “deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional approaches to punishment, must be isolated from society in order to protect the public safety.” (Ewing v. California, supra, at p. 24.)
Appellant’s specific contention that imposition of a sentence that is longer than a human lifespan is inherently cruel and unusual was rejected in People v. Byrd (2001) 89 Cal.App.4th 1373, where the court noted: “[I]t is immaterial that defendant cannot serve his sentence during his lifetime. In practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole: he will be in prison all his life. . . . [I]mposition of a sentence of life without possibility of parole in an appropriate case does not constitute cruel or unusual punishment under either our state Constitution [citation] or the federal Constitution. [Citation.]” (Id. at p. 1383; see also People v. Sullivan, supra, 151 Cal.App.4th at p. 573 [imposition of a sentence upon defendant under the Three Strikes law of 210 years to life does not constitute cruel and unusual punishment].)
Here, appellant’s prior record included assault and battery, assault with a deadly weapon, shooting at an inhabited dwelling, robbery, and possession of drugs for sale. He was also convicted of a misdemeanor count of inflicting corporal injury to another cohabitant. These crimes occurred within a span of a dozen years. His current offenses were committed a short time after his release from imprisonment and included the near murder of Abdullah-Raheem and the terrorizing of her and her young children. In view of the authorities noted above, there is no basis for concluding that on this record of recidivism, imposition of the underlying sentence constituted disproportionate or cruel and unusual punishment under either the California Constitution or the United States Constitution.
DISPOSITION
The judgment is modified by staying the 25-year to life sentences on counts two and five. In all other respects the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment to reflect this modification, and to forward a copy to the Department of Corrections and Rehabilitation.
We concur: EPSTEIN, P. J., SUZUKAWA, J.