Opinion
B230822
01-25-2012
THE PEOPLE, Plaintiff and Respondent, v. GARY LEON HILLIARD, Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA083148)
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Affirmed as modified.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Gary Leon Hilliard, was convicted by a jury of: firearm assault (Pen. Code, § 245, subd. (a)) (count 1); false imprisonment by violence (§ 236) (count 2); inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)) (count 3); firearm possession by a felon (§ 12021, subd. (a)(1)) (count 7); first degree burglary (§ 459) (count 9); threatening a witness (§ 140, subd. (a)) (count 10); and attempted kidnapping (§§ 664, 207, subd. (a)) (count 11). The jury was unable to reach a verdict and the trial court declared a mistrial as to counts 4, 5 and 6 (criminal threats, § 422) and 8 (attempted murder, §§ 664, 187, subd. (a)). The jury further found: defendant personally used a deadly and dangerous weapon, a screwdriver, in the commission of the burglary, threatening a witness and attempted kidnapping (§ 12022, subd. (b)(1)); defendant was out of custody on bail when he committed the burglary, threatening a witness, and attempted kidnapping (§ 12022.1); defendant personally used a shotgun in the commission of the firearm assault (§ 12022.5); the corporal injury acts occurred within seven years of defendant's prior corporal injury conviction (§ 273.5, subd. (e)(1)) ; and there was another person present during the burglary, making it a violent felony (§ 667.5, subd. (c)(21)).
All further statutory references are to the Penal Code unless otherwise noted.
The attempted murder charge (§§ 664, 187, subd. (a)) (count 8) was retried. The second jury found defendant guilty. The jury found the attempted murder was not premeditated. The jury further found the deadly weapon use and on bail allegations to be true. (§§ 12022, subd. (b)(1), 12022.1.) Defendant was sentenced to 26 years, 4 months in state prison.
II. THE EVIDENCE
A Prosecution Evidence
1. Prior uncharged acts
Defendant has a history of domestic violence. He had on three separate occasions between 2000 and 2002 assaulted a former girlfriend, Angela H., including once in the presence of their young daughter. The third assault left Angela H. with: a bruised and swollen face; a bruised arm; and a small laceration on her ear. Defendant admitted at trial he had been convicted of corporal injury as a result of an altercation with Angela H.
Defendant also engaged in domestic violence against the present victim, Sue B., in the months preceding the conduct underlying his conviction in this case. On May 27, 2009, defendant spit in Sue's face, called her a bitch, threw a can of beer at her head, knocking her to the ground, and choked her.
2. August 27, 2009—counts 1 and 7
On August 27, 2009, defendant, a convicted felon, held a shotgun two inches from Sue's face. Defendant said, "Tell me I'm gonna get my family back." Only when Sue agreed did defendant lower the weapon.
3. August 31, 2009—counts 2 through 4
On August 31, 2009, four days after assaulting Sue with a firearm, defendant entered her home through an unlocked door. He was angry that Sue had spent the weekend with her family and had not communicated with him. Defendant and Sue began to argue. When Sue attempted to leave the house, defendant slammed the door closed and would not let her leave. He grabbed her cellular telephone from her hand and threw it across the room, smashing it.
They then moved from the doorway to the living room. Defendant was yelling and screaming. He came up behind Sue, locked his arms around her neck and choked her. He told her he was going to kill her by breaking her neck. He said: "Just Relax. I'm gonna snap your neck, and it will kill you." Sue struggled and they fell to the floor. Defendant still had her in a choke hold. He wrapped his legs around her legs. Sue continued to struggle. She grabbed a chair and knocked it against the wall. She was hoping someone walking by would hear the noise. Eventually she wiggled free of defendant's grasp. Sue described how defendant choked her, "[For the] longest 20 seconds of my life." She got to her knees and gasped for air.
Shortly thereafter, in an attempt to escape, Sue convinced defendant she needed to walk their two dogs. Defendant agreed but accompanied her. While they were walking, defendant said he had just purchased a boat and he wanted to show it to Sue. They walked to where a boat on a trailer was parked. Laughing, defendant said: "See, I have a boat now. I can chop you up in little pieces and dispose of your body and nobody will know." Sue understood the statement as a threat. She believed defendant was capable of doing what he threatened.
After they returned to Sue's house, defendant looked her in the eye and said, "I'm gonna videotape killing your sister with the shotgun and post it on YouTube and I'm gonna make you watch it." Sue testified, "He said he was going to blow my sister's head off with the shotgun, videotape it, and post it on YouTube and make me watch it." Defendant told Sue that if she went to the police they had better make it stick because he had her social security number and he would find her and get her. He said he would slice her throat from ear to ear and blow her head off if she went to the police.
The following morning, as soon as Sue arrived at her housekeeping job, she set the house alarm and called the police. A law enforcement officer arrived to take her statement. Other officers proceeded to Sue's home to arrest defendant and retrieve the shotgun. Sue suffered neck muscle strain as a result of the attack.
4. October 5, 2009—counts 8 through 11
On September 25, 2009, Sue learned defendant was going to be released on bail. She drove to Northern California. She returned on September 30. She returned to her housekeeping work on October 5, 2009, at the home of Dr. Gerard and Barbie Nat. While working in the home, Sue encountered defendant exiting a guest bedroom. He came up behind her and said: "Don't scream. I just want to talk to you." He put his hands on her back and guided her into the living room where he pushed her towards the couch. She had no idea how he had gotten into the house. He stood in front of her. She saw a bulge in his front right pocket and asked what it was. Defendant said it was none of her business. Sue thought it was a gun. Defendant pulled out his phone and announced the time. He said, "It's 9:30, and at eleven o'clock you're gonna die." Defendant repeated this refrain 20 times over the course of more than an hour. He told Sue she was going to die at least 100 times. Defendant said Sue was going to die because she told the police where the gun was and he was going to get 15 to life. Defendant said Sue ruined his life and he was going to ruin hers. Sue asked again about the bulge in defendant's pocket. He pulled out a foot-long screwdriver. Sue noticed a bulge in defendant's left pocket as well. Defendant pulled a roll of black duct tape out of his left pocket. Sue realized defendant had recently been in her house and had taken the duct tape from it. Sue told defendant she needed to retrieve her phone from an upstairs bedroom. They went upstairs together. Defendant sat Sue down on Dr. Nat's bed and went through her phone calls and text messages. Defendant found a detective's phone number and became very angry. He slapped Sue so hard across her right cheek that her face started to welt. As she held her face, he grabbed her hair and punched her with his fist across the left side of her face. He forced her to write a note to her family saying her phone was broken and she was going away for a few days. In the note, Sue addressed a sister as Kristine. Normally, Sue referred to the sister as Kris. Sue did this to alert her family that something was wrong. Defendant took the note and put it in his pocket. He took Sue back downstairs to the living room and sat her on the couch. Defendant again threatened to kill Sue.
At some point defendant told Sue, "If you just leave with me for a couple of days, I'll let you go and it can all be over." Sue agreed. She told him: "Yes. Let me go get the dogs. We'll go." But defendant responded, "You're playing with me." Around 10:30 a.m., defendant guided Sue to the kitchen. He kept telling her she was going to die. He told her to cup her hands together, he was going to tape her wrists. She assumed he was going to take her out of the house. He attempted unsuccessfully to tape her wrists. She pleaded with defendant not to bind her with the duct tape. Defendant was growing angrier. He backed her into a corner of the kitchen, pinned her up against the counter, pulled out the screwdriver, and brought it up over his head. Defendant told Sue she was going to die. He brought the screwdriver down towards her neck. Sue reached up and grabbed it. She wrestled with defendant. She kept trying to push him back. Defendant was trying to bring the screwdriver towards her and she was trying with all her might to push it away. Sue was knocked to the floor. Defendant grabbed her hair on both sides of her head. He picked up her head and slammed it against the floor twice. In the process, defendant ripped the hair out of her head. Sue wrestled her way back to the living room. Defendant was on top of her. She wriggled toward the front door. When she got near the door, she maneuvered defendant on his back and jammed two of her fingers in his mouth. Defendant bit her. Sue realized the screwdriver was not in defendant's hand. She reached for and turned the deadbolt on the front door. She struggled out the door, screaming. Defendant tried to pull her back into the house saying, "I'm gonna kill you." Sue took two steps before defendant grabbed her legs and pulled her pants down. She made her way toward the boardwalk, screaming for help. Defendant punched her, told her to shut up and threatened to kill her. A neighbor, John Elm, then came running around the corner. Defendant saw Mr. Elm. Defendant then ran away.
Mr. Elm was in his home when he heard "a very, very loud" shriek. Mr. Elm ran out of his house and in the direction of the noise. Mr. Elm saw defendant hovering over a woman who was cowering on the ground. Both of defendant's arms were on the woman. The woman yelled, "Help me, help me." Mr. Elm asked, "What the hell are you doing?" Defendant looked in Mr. Elm's direction and then ran away. Mr. Elm did not see anything in defendant's hands at any time. Long Beach Police Officer Mary Covarubias arrived and spoke to Sue. Officer Covarubias testified, "[Sue] was beat up pretty bad." Sue said her ex-boyfriend had tried to kill her.
B. Defense Evidence
Defendant testified on his own behalf at the first trial. He did not testify at the retrial on the attempted murder count. Defendant testified as follows. Sue instigated the May 27, 2009 incident. She came home angry. She accused defendant of embarrassing her. This arose out of an incident in front of Sue's sister, Kristine. She pushed him. Defendant left the room for 10 minutes. When he returned, Sue said, "I want you to get out of my house right now." She pushed him again and he pushed her back. They got into what defendant described as "a little scuffle." That was when Kristine came into the house. Sue had defendant on the floor. Defendant testified: "[T]hat was it. I don't know where this beer thing came from." Kristine came in and said, "'Come here,' like she wanted to fight me outside." Kristine said, "I'm calling the cops." Defendant said to Kristine, "Because of you, you ruined my family." Kristine told defendant to fuck off. Defendant got in his truck and left. About his relationship with Kristine, defendant testified she held a grudge against him. This was because Kristine had liked defendant. By contrast, defendant liked Sue. He said, "That's why Sue said her sister has a[n] attitude with me." Defendant tried to get along with Kristine, but she held that grudge in defendant's opinion.
On June 3 or 4, 2009, Sue sent a text message to defendant. Sue said she was okay and she wanted to know whether defendant wanted to visit the dogs. Defendant did not know Sue had secured a restraining order. On June 10, Sue sent another text message to defendant. Sue instructed him to meet her at Belmont Shore if he wanted to see the dogs. When they met, Sue offered to give defendant another chance if he took anger management classes. On June 20, Sue sent another message to defendant which said, "You can come home now." Defendant moved back in and Sue gave him a key to the new lock she had installed. But Sue was afraid to tell her family that she was back together with defendant.
Defendant testified he only vaguely remembered the evening of August 27, 2009, because he was drunk. He had consumed 18 cans of Bud Light in about 2 hours. He did not remember what happened after Sue got home. He did remember that Sue, who was unhappy he had been drinking, punched him in the mouth. He denied pointing a gun at Sue. The next day, August 28, Sue told defendant he had been "acting stupid" the previous night. She did not mention a gun.
On August 31, defendant testified he went home and Sue was there. She was lying in bed. Defendant lay down as well. Nothing happened that night. On September 1, 2009, they got up and walked the dogs. Defendant told Sue he had gotten a boat. After that, at about 7:30 a.m., Sue went to work. She took defendant's truck because her car was not working. After she left, defendant went to look at Sue's car. While he was working on the car, he saw a police car parked next door. He did not think anything of it. Defendant walked towards the house. An officer drew a weapon and ordered defendant to "freeze." Defendant was told he was under arrest for violating a restraining order. Defendant spent about three weeks in jail before he was released on bail. During that time, he had no contact with Sue. He posted bail on September 24.
On October 5, 2009, defendant testified, he was trying to get his property back from Sue's house. He called the Long Beach Police Department to ask how he could retrieve his things. According to defendant, "they" kept putting him on hold and told him to get a lawyer. He sent two friends to retrieve his truck and boat from Sue's property. Defendant testified, "I wanted to talk to Sue to let her know how sorry I was for what happened." He did not realize there was a restraining order. He went to Sue's place of employment. Defendant explained why he had a screwdriver with him: "The reason why I had the screwdriver was because I know if I would have seen Sue on the street, she would have freaked out and screamed. The only thing I wanted to do was just talk to her. That's it. That's all I wanted to do." He had the duct tape with him to prevent the door that opened into the garage from locking. He went into the house where Sue was working. He called to her and she came downstairs. She said, "What the hell are you doing here?" Defendant said, "I just want to talk to you." She said, "What the hell is wrong with you." Defendant said: "Sue, I don't want no problems. I just want to talk to you. That's all I want to do Sue. I'm cool. I just want to talk to you." Defendant testified, "She wasn't freaked out or hysterical or anything then." Sue told defendant she had called the police because she was under pressure from her family. Sue's family members wanted her to stay away from defendant. Then Sue brought up Sandra, defendant's girlfriend. Defendant told Sue he wanted his property from her house. Sue said about Sandra: "I found these pictures of this Black bitch in your truck. Who is she?" Defendant told Sue that since she did not want him, he had started a "little affair" with Sandra.
Defendant testified Sue got up and stood in his face. He walked away and went into the kitchen. Sue came up behind defendant. When he turned around, she "crack[ed]" him in the forehead. Defendant testified, "She popped me a good one." Defendant fell to his knees. Then he lunged at Sue and grabbed her by the waist. They fought. They rolled from the kitchen to the living room, fighting. Somehow Sue got the screwdriver out of defendant's pocket and attacked him with it. He tried to run from her, but he fell. He opened the door and fled. Sue chased him. She fell down two steps. When Sue fell, she screamed: "You stupid mother fucker. You see, you made me fall. . . . I hate you. I hate you." Defendant saw the neighbor standing on the corner. Defendant "freaked out" and ran. Defendant denied ever intending to kill Sue.
On cross-examination, defendant explained that he was living with Sue, but he would stay a night or two with Sandra, who was now his wife. Defendant and Sandra were married on October 6, 2009, the day following the altercation at the Nat residence. Defendant denied ever beating his former girlfriend, Angela. He said they had a fight, but he did not beat her. Defendant testified, "I don't beat none of my girlfriends." He denied choking Sue. Defendant testified, "It was in a headlock." He knew he was in violation of a restraining order when he went to Sue's place of work on October 5, 2009. Defendant had a screwdriver with him, but it was not for protection or to fix anything.
C. Rebuttal
Long Beach Police Detective Sean Irving testified about defendant's arrest on October 6, 2009. Defendant said: "I know I'm going down for this. I went fishing, and my ex-girl . . . called me over, and I went over there. Then it got crazy." Defendant said he had been fishing when Sue called to him from the house where she was working. Sue then attacked defendant with a screwdriver or an ice pick and a struggle ensued outside on the beach. Later, defendant changed his story and said the altercation occurred inside the house.
III. DISCUSSION
A. Attempted Kidnapping
As noted above, in count 11, defendant was convicted of attempted kidnapping during the initial trial. The jury was instructed on attempted kidnapping thusly: "The defendant is charged in Count 11 with attempted kidnapping. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took a direct but ineffective step toward committing kidnapping; [¶] AND [¶] 2. The defendant intended to commit kidnapping. [¶] A direct step requires more than merely planning or preparing to commit kidnapping or obtaining or arranging for something needed to commit kidnapping. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to commit kidnapping. It is a direct movement towards the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] To decide whether the defendant intended to commit kidnapping, please refer to the separate instructions that I will give you on that crime. [¶] The defendant may be guilty of attempt even if you conclude that kidnapping was actually completed." (CALCRIM No. 460.)
The trial court further instructed the jury on the elements of kidnapping: "The defendant is charged in Count 11 with attempted kidnapping. [¶] To prove kidnapping, the People would have to prove that the defendant did the following: [¶] 1. The defendant took, held, or detained another person by using force or by instilling reasonable fear; [¶] 2. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance; [¶] AND [¶] 3. The other person did not consent to the movement. [¶] Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection." (CALCRIM No. 1215.)
Defendant did not request clarification or any additional instruction. On appeal, however, defendant argues the trial court had a sua sponte duty to include certain additional language in its instruction on the asportation element of kidnapping. In determining whether he intended to move Sue a substantial distance, defendant argues the jury could consider an aspect of the intended asportation. Defendant argues the jury should have considered whether the intended distance was beyond that merely incidental to the commission of the burglary or the attempted murder. Defendant contends the jury could have found his intended movement of the victim was merely incidental to associated crimes—specifically, burglary or attempted murder. Therefore, he was not guilty of attempted kidnapping.
We assume for purposes of discussion that the jury was required to find defendant intended to move the victim a substantial distance. We note, however, that asportation is not an element of attempted kidnapping. Section 21a sets forth the elements of an attempted crime, "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward is commission." (People v. Clark (2011) 52 Cal.4th 856, 948; accord People v. Medina (2007) 41 Cal.4th 685, 694.) As our Supreme Court has explained, "Other than forming the requisite criminal intent, a defendant need not commit an element of the underlying offense." (People v. Medina, supra, 41 Cal.4th at p. 694; accord, People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8; People v. Guerra (2006) 37 Cal.4th 1067, 1130 ["An actual element of the offense [attempted] need not be proven"].) It follows that asportation is not an element of attempted kidnapping. (People v. Cole (1985) 165 Cal.App.3d 41, 50 ["since the crime here is attempted kidnapping, the distance [the victim] was moved is immaterial—asportation simply is not an element of the offense"]; People v. Fields (1976) 56 Cal.App.3d 954, 956; 1 Witkin, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 277, p. 885 ["Asportation is not required"]; Levenson et al., California Criminal Law, Crimes Against Security of the Person, § 6:60 ["Asportation is not an element of attempted kidnapping"].) In People v. Fields, supra, 56 Cal.App.3d at page 957, Division Two of the Court of Appeal for this appellate district held: "[I]n an unsuccessful kidnapping which has been aborted, to require the prosecution to show more than a forcible attempt to move the victim . . . in order to prove intent to move the victim a substantial distance, would be to read the crime of attempted kidnapping out of the law. In the absence of any evidence to suggest that defendant contemplated no more than a trivial movement of his victim, the requisite intent to kidnap may be inferred." (See 1 Witkin, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 277, p. 885.)
Even if we assume the jury was required to find defendant intended to move the victim a substantial distance, we would not conclude the trial court had a sua sponte duty to instruct in the manner urged. A trial court must on its own motion instruct the jury on all general principles of law that relate to issues raised by the evidence. (People v. Blacksher (2011) 52 Cal.4th 769, 845-846; People v. Montoya (1994) 7 Cal.4th 1027, 1040.) As our Supreme Court recently reiterated: "A trial court has a sua sponte duty [in criminal cases] to 'instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case,' . . . . (People v. Carter (2003) 30 Cal.4th 1166, 1219.)" (People v. Blacksher, supra, 52 Cal.4th at pp. 845-846; accord, People v. Najera (2008) 43 Cal.4th 1132, 1136.) A criminal defendant is constitutionally entitled to have the jury determine every material issue raised by the evidence. (People v. Romero (2008) 44 Cal.4th 386, 402; People v. Huggins (2006) 38 Cal.4th 175, 215.) However, sua sponte instruction is required only if there is substantial evidence from which the trier of fact could find the facts underlying the instruction true. (People v. Wickersham (1982) 32 Cal.3d 307, 323, disapproved on another point in People v. Barton (1995) 12 Cal.4th 186, 201; People v. Flannel (1979) 25 Cal.3d 668, 683.) As discussed below, there was no substantial evidence of any associated crimes. Accordingly, the trial court had no sua sponte duty to give an associated crimes instruction.
In People v. Martinez (1999) 20 Cal.4th 225, 237, our Supreme Court discussed the factors appropriately considered for simple kidnapping asportation. The court held: "[W]e conclude it would . . . be proper for the [trial] court to instruct that, in determining whether the movement is '"substantial in character"'[citation], the jury should consider the totality of the circumstances. Thus, in a case where the evidence permitted, the jury might properly consider not only the actual distance the victim is moved, but also such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes." (Ibid., fn. omitted.) Our Supreme Court emphasized, however: "We . . . do not adopt the Court of Appeal's asportation standard, which would have required a finding that the movement substantially increased the victim's vulnerability or risk of harm. While the jury may consider a victim's increased risk of harm, it may convict of simple kidnapping without finding an increase in harm, or any other contextual factors. Instead, as before, the jury need only find that the victim was moved a distance that was 'substantial in character.' [Citations.] To permit consideration of 'the totality of the circumstances' is intended simply to direct attention to the evidence presented in the case, rather than to abstract concepts of distance. At the same time, we emphasize that contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance." (Ibid., italics added.)
Moreover, as is significant to defendant's argument here, our Supreme Court held: "In addition, in a case involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement's substantiality. . . . [S]uch consideration is relevant to determining whether more than one crime has been committed . . . ." In People v. Bell (2009) 179 Cal.App.4th 428, 438-439, the Court of Appeal for the Fourth Appellate District, Division Three, defined "associated crime": "[A]n 'associated crime,' as that phrase was used by the Martinez court, is any criminal act the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will."
Here, the prosecution's theory, as reflected in argument to the jury, was that defendant attempted to kidnap Sue when she was trying to escape through the front door and he tried to pull her back in. With respect to the substantial distance element of kidnapping, Deputy District Attorney Carol Rose argued: "Did the [attempted] movement increase the risk . . . of physical or psychological harm? Of course, he's bringing her back in because he's going to . . . continue the assault. . . . [¶] Did the distance increase the danger of a foreseeable escape attempt? Of course, it would make it even harder for her to escape. . . . Did it give the attacker a greater opportunity to commit more crimes? This is, remember, attempt. He gets her inside and he's going to continue assaulting her. [¶] Did the movement decrease the likelihood of detection? . . . Inside the house people can't see what he's doing and he can get her mouth taped up and shut her up and do what he needs to do or at least he thinks he can. [¶] So all of these are yeses and that's what makes it substantial . . . ."
There was no substantial evidence of any associated crimes, and any error was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 837.) The burglary was complete when defendant entered the house with the requisite intent. (§ 459; People v. Montoya, supra, 7 Cal.4th at pp. 1051-1052; People v. Shaber (1867) 32 Cal. 36, 38.); People v. Elsey (2000) 81 Cal.App.4th 948, 955; see People v. Valencia (2002) 28 Cal.4th 1, 8 ["'the California courts have found that a burglary is complete upon the slightest partial entry of any kind, with the requisite intent'"].) No movement of the victim was necessary to commit the burglary. The attempted murder occurred in the kitchen before the victim escaped through the front door and defendant attempted to drag her back into the house. Under these circumstances, neither the burglary nor the attempted murder was an associated crime within the meaning of Martinez. The jury could not have concluded the intended movement was incidental to the burglary or the attempted murder.
B. Multiple Punishment
1. Overview
Defendant argues the proscription of multiple punishment in section 654, subdivision (a) requires that several counts be stayed because they were committed to facilitate other crimes. We agree in part. We conclude the count 9 first degree burglary sentence must be stayed.
Section 654, subdivision (a) states: "An act or omission that is punishable in different ways by different provision 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." Our Supreme Court has held: "'Section 654 does not preclude multiple convictions but only multiple punishments for a single act or indivisible course of conduct. (See People v. Beamon (1973) 8 Cal.3d 625.' (People v. Miller (1977) 18 Cal.3d 873, 885 [, disapproved on another point in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn.8].) 'The proscription against double punishment in section 654 is applicable where there is a course of conduct which . . . comprises an indivisible transaction punishable under more than one statute. . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.' (People v. Bauer (1969) 1 Cal.3d 368, 376.) 'The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]' (People v. Adams (1982) 137 Cal.App.3d 346, 355.)" (People v. Coleman (1989) 48 Cal.3d 112, 162; accord, e.g., People v. Tarris (2009) 180 Cal.App.4th 612, 626-627; People v. Garcia (2008) 167 Cal.App.4th 1550, 1564.)
Our Supreme Court has held: "Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal." (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3; accord, People v. Hester (2000) 22 Cal.4th 290, 295.) We review the trial court's multiple sentences in the context of a section 654, subdivision (a) question for substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) The trial court has broad latitude in determining whether section 654, subdivision (a) applies in a given case. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) We view the evidence in the light most favorable to the judgment and presume the existence of every fact the trial court could deduce from the evidence. (People v. McGuire (1993) 14 Cal.App.4th 687, 698.) A defendant may have multiple criminal objectives even though the acts occurred closely together in time. (People v. Davis (2005) 36 Cal.4th 510, 557; People v. Hicks (1993) 6 Cal.4th 784, 788-789.)
2. August 31, 2009: counts 2 and 3
On August 31, 2009, defendant entered Sue's home uninvited. He was angry that Sue had spent the weekend with her family and had been out of touch with him. Sue wanted to leave the house. She picked her cellular telephone up from a table and attempted to walk out her front door. Defendant slammed the door closed and would not let her leave. He took her cellular telephone out of her hand and threw it across the room. After they made their way to the living room, defendant came up behind Sue, locked his arms around her neck and began to choke her. He told her he was going to kill her by breaking her neck. He said: "Just relax. I'm gonna snap your neck, and it will kill you." Sue struggled and they fell to the floor. Defendant still had her in a choke hold. He wrapped his legs around her legs. Sue continued to struggle. She grabbed a chair and knocked it against the wall. She was hoping someone walking by would hear the noise. Eventually she wiggled free of defendant's grasp. Sue testified defendant choked her. Sue described the duration she was choked, "[For the] longest 20 seconds of my life." She got to her knees and gasped for air. The jury found defendant guilty of false imprisonment by violence and corporal injury to a cohabitant.
Defendant argues counts 2, false imprisonment by violence, and 3, corporal injury to a cohabitant, could not be punished separately. Defendant reasons: "[T]he false imprisonment was accomplished by means of violence in the form of a choke hold. Therefore, the two offenses arose out of a single set of facts. [Defendant] wanted Sue B. to remain so that he could berate her, and he applied force to prevent her leaving that caused injury."
Pursuant to section 236, "False imprisonment is the unlawful violation of the personal liberty of another." False imprisonment is punishable as a felony if it is effected by, inter alia, violence. (§ 207.) This court has held, "[T]he essential element of false imprisonment is restraint of the person. Any exercise of express or implied force which compels another person to remain where he [or she] does not wish to remain . . . is false imprisonment. (People v. Fernandez (1994) 26 Cal.App.4th 710, 717.)' (People v. Bamba (1997) 58 Cal.App.4th 1113, 1123.)" (People v. Dominguez (2010) 180 Cal.App.4th 1351, 1360.) The Court of Appeal for the First Appellate District has explained that "violence" in this context means: "'"[T]he exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint."' (People v. Babich (1993) 14 Cal.App.4th 801, 806, quoting CALJIC No. 9.60, italics omitted.)" (People v. Bamba, supra, 58 Cal.App.4th at p. 1123; accord, People v. Reed (2000) 78 Cal.App.4th 274, 280.) Corporal injury to a cohabitant is defined in section 273.5: "(a) Any person who willfully inflicts upon a person who is his . . . cohabitant, former cohabitant . . . corporal injury resulting in a traumatic condition, is guilty of a felony . . . . [¶] . . . [¶] (c) As used in this section, 'traumatic condition' means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force." (People v. Wilkins (1993) 14 Cal.App.4th 761, 771.)
The trial court could reasonably conclude defendant, consistent with his history of domestic abuse, used violence in an effort to keep Sue from leaving the residence. The trial court could reasonably conclude defendant slammed the door and threw Sue's telephone across the room to prevent her from leaving as she desired with the intent to scare and intimidate her. Sue then moved away from the door; that is, she no longer attempted to flee. Only then did defendant assault Sue with the intent to harm and punish her for spending time with her family and away from him. No section 654, subdivision (a) error occurred in connection with counts 2 and 3. (People v. Surdi (1995) 35 Cal.App.4th 685, 688-689; People v. Goodman (1958) 159 Cal.App.2d 54, 61-62.)
3. October 9, 2009: counts 8, 9, 10 and 11
The jury convicted defendant of attempted murder, first degree burglary, threatening a witness and attempted kidnapping arising out of the October 9, 2009 events at the Nat residence. Defendant asserts the evidence established he had a single intent and objective when he entered the home on October 5, 2009. Defendant argues he entered the Nat residence with a single intent "to dominate and terrorize, and ultimately to murder" Sue. Therefore, defendant reasons, "The sentences for counts [9], [10], and [11], must be stayed pursuant to Penal Code section 654." We agree to a limited degree. The count 9 first degree burglary sentence must be stayed pursuant to section 654, subdivision (a). (People v. Miller, supra, 18 Cal.3d at p. 886 [aggravated burglary and assault against same victim]; In re McGrew (1967) 66 Cal.2d 685, 688 [burglary and sex offenses]; People v. McElrath (1985) 175 Cal.App.3d 178, 191 [burglary based on intent to commit sexual assaults]; People v. Niles (1964) 227 Cal.App.2d 749, 755 [burglary and assault]; People v. Collins (1963) 220 Cal.App.2d 563, 577, [burglary and aggravated assault].)
We are unpersuaded by the argument of the Attorney General that the multiple victim violent felony exception applies to the burglary thereby permitting multiple punishment. (People v. Centers (1999) 73 Cal.App.4th 84, 99 (Centers); People v. Le (2006) 136 Cal.App.4th 925, 932; see also People v. Guzman (1996) 45 Cal.App.4th 1023, 1028.) Centers, the principal authority relied upon by the Attorney General, is inapposite. In Centers, the resident of the home, Jennifer Grundman, was physically present when the entry occurred. (Centers, supra, 73 Cal.App.4th at pp. 89, 102.) Also, the jury found defendant used a firearm in the commission of the burglary. (Centers, supra, 73 Cal.App.4th at p. 90.) And Ms. Grundman, the occupant of the residence, had the firearm menacingly pointed at her during the fracas. (Centers, supra, 73 Cal.App.4th at pp.101-102.) Here, Mr. Nat, the named victim of the burglary charge in the first amended information, was not present. Nor was Mr. Nat, as was the resident in Centers, Ms. Grundman, menaced with a firearm. The screwdriver was never used to harm or threaten Mr. Nat with physical injury. Centers is not controlling. The subordinate burglary and deadly weapon use terms must be stayed.
But substantial evidence supports the trial court's implied finding of separate intents concerning the remaining crimes committed on October 5, 2009. After entering the residence, defendant verbally threatened to use force or violence against Sue because she had provided information to law enforcement officers. Defendant repeatedly told Sue that by leading law enforcement authorities to his gun, she had ruined his life, and he would ruin hers. He repeatedly announced his intention to kill her. These acts comprised the crime of threatening a witness. (§ 140, subd. (a).) Sometime later, after defendant had become angrier, he assaulted her with a screwdriver with the intent to kill her. And following a lengthy struggle, when Sue escaped through the front door, defendant attempted to kidnap her with the intent to avoid detection. The trial court did not err in failing to impose any section 654, subdivision (a) stay on these counts. (See People v. Surdi, supra, 35 Cal.App.4th at pp. 688-689; People v. Goodman, supra, 159 Cal.App.2d at pp. 61-62.)
C. Court Facilities Assessment
The trial court failed to impose any court facilities assessment under Government Code section 70373, subdivision (a)(1). The trial court was required to impose a court facilities assessment of $30 as to each of the eight counts for a total of $240. (Gov. Code, § 70373, subd. (a)(1); People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3.) The judgment must be modified to so provide.
D. Presentence Custody Credit
Defendant was in presentence custody for 491 days from October 6, 2009, to February 8, 2011. The trial court calculated defendant's conduct credit under section 2933.1, subdivision (a) as 74 days. However, 15 percent of 491 is 73.65. Conduct credits are calculated to the greatest whole number without exceeding 15 percent. (People v. Duran (1998) 67 Cal.App.4th 267, 270; People v. Ramos (1996) 50 Cal.App.4th 810, 815-817; see In re Reeves (2005) 35 Cal.4th 765, 775.) Therefore, defendant was entitled to 73 days of conduct credit, not 74. The judgment will be modified to so reflect.
IV. DISPOSITION
The sentence under count 9 is stayed pursuant to Penal Code section 654, subdivision (a). Defendant's unstayed sentence is reduced to 24 years, 8 months. The judgment is further modified to impose a court facilities assessment of $30 (Gov. Code, § 70373, subd. (a)(1)) as to each of the 8 counts for a total of $240, and to award defendant 73 days of conduct credit instead of 74. The judgment is affirmed in all other respects. Upon remittitur issuance, the abstract of judgment must be corrected to accurately reflect the foregoing and that the sentence imposed was 24 years, 8 months. The clerk of the superior court shall deliver a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J. We concur:
MOSK, J.
KRIEGLER, J.