Opinion
C098013
05-08-2024
THE PEOPLE, Plaintiff and Respondent, v. JAMES MARLOW TOWNSEND, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 21FE018973)
ROBIE, Acting P. J.
A jury found defendant James Marlow Townsend guilty of inflicting corporal injury upon his spouse, making criminal threats, stalking, and knowingly violating a court protective order. The trial court sentenced defendant to an aggregate term of four years four months in prison, comprised of three years for corporal injury and eight months each for criminal threats and stalking, which were all to be served consecutively. On appeal, defendant argues the trial court erred by failing to stay either the corporal injury or criminal threats sentence under Penal Code section 654. Alternatively, defendant argues the trial court abused its discretion by imposing consecutive rather than concurrent terms. We disagree with both of defendant's arguments and affirm.
Further undesignated section references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2021, D. Doe obtained a restraining order against defendant, her husband, but allowed minimal contact limited to defendant getting his work tools from a garage on the couple's property. Doe also allowed defendant to retrieve clothes from their bedroom when Doe was at work, but defendant had to enter and exit through the bedroom door leading to the backyard.
On November 12, 2021, Doe unexpectedly encountered defendant in an area of the house in which he was not permitted. Defendant stated, "What the fuck are you up to?" Doe said she would call 911 if defendant did not leave, to which defendant replied, "Go ahead and fucking call them." Doe went to the landline phone but defendant charged and tackled her before she was able to dial 911. Defendant strangled Doe and repeatedly told her he was "going to fucking kill [her]." Doe tried to sit up but defendant pressed Doe to the ground and resumed strangling her. Defendant strangled Doe to the point of near unconsciousness four to five times.
Defendant eventually relented and Doe escaped while defendant went into the kitchen. Doe ran into the street, got into a stranger's truck, and the stranger drove to a parking lot. Doe called the sheriff's department while still in the stranger's vehicle. Defendant was arrested and later convicted of inflicting corporal injury upon his spouse, making criminal threats, stalking, and knowingly violating a court protective order.
At defendant's sentencing hearing, the prosecutor argued section 654 was inapplicable. Defendant's trial counsel indicated he believed section 654 applied and that probation was appropriate. Counsel then argued for the trial court to impose concurrent rather than consecutive sentences for defendant's corporal injury and criminal threats convictions. Counsel did not articulate why he thought section 654 applied, other than to remark that the probation report "got it right" in recommending that the sentence for the criminal threats conviction be stayed. The prosecutor argued that section 654 did not apply because the crimes of corporal injury and criminal threats were "separate and distinct" acts of different classes-one being "assaultive in nature," the other "verbal in nature."
The trial court found defendant ineligible for probation based on several factors: Defendant "inflicted severe physical and emotional pain on his wife"; "the crimes committed in this case . . . are severe"; and Doe was "vulnerable physically." The trial court then imposed consecutive rather than concurrent sentences for defendant's corporal injury and criminal threats convictions without reiterating its reliance on the aforementioned factors. The trial court did not stay defendant's corporal injury or criminal threats convictions because it found section 654 was inapplicable.
Defendant appeals.
DISCUSSION
I
Substantial Evidence Supports That Defendant Harbored
Separate Intents And Objectives
Defendant argues that either his corporal injury or criminal threats sentence should have been stayed under section 654 because he had the same overarching intent and objective when committing the offenses, which was to inflict physical and emotional suffering upon Doe. The People argue defendant acted with separate intents or objectives, namely, to cause physical harm (corporal injury) and to cause emotional harm (criminal threats). The People look primarily to the intent, i.e., mens rea, elements of the statutes underlying defendant's corporal injury and criminal threats convictions to argue that defendant had a separate intent and objective for each crime.
Section 654, subdivision (a) provides, "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision."" 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'" (People v. Britt (2004) 32 Cal.4th 944, 951-952.)
A separate objective may exist when a defendant harbors different but simultaneous objectives. (People v. Latimer (1993) 5 Cal.4th 1203, 1212 [collecting cases]; see also People v. Osband (1996) 13 Cal.4th 622, 730-731 [the defendant harbored multiple intents when he robbed and raped the victim]; People v. Booth (1988) 201 Cal.App.3d 1499, 1502 [the defendant had "dual objectives of rape and theft when entering the victims' residences," which supported the unstayed sentences for burglary and rape].) Thus, where a defendant commits multiple acts and harbors both the intent to cause physical harm and the intent to cause mental or emotional harm, section 654 is inapplicable. (In re Raymundo M. (2020) 52 Cal.App.5th 78, 95 (Raymundo M.) [holding § 654 did not apply because the defendant's objective in committing the assault could have been to inflict physical harm and his objective in criminally threatening the victim could have been to inflict mental harm]; People v. Mejia (2017) 9 Cal.App.5th 1036, 1047 [holding § 654 was inapplicable because the defendant's objective in committing torture was to cause physical harm whereas his objective in making criminal threats was to cause emotional harm].)
" 'A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence.'" (Raymundo M., supra, 52 Cal.App.5th at p. 94.) "Section 654 turns on the defendant's objective in violating both provisions, not the Legislature's purpose in enacting them, but examining the overall purpose behind the [provisions] helps illuminate the defendant's objective in violating them." (People v. Britt, supra, 32 Cal.4th at p. 952.)
Given our Supreme Court's holding that defendant's intent and objective is the relevant inquiry (People v. Britt, supra, 32 Cal.4th at p. 952), we agree with the People that there is substantial evidence to support the trial court's finding of multiple intents, albeit for slightly different reasons than those urged in the People's brief.
For the jury to have found defendant guilty of criminal threats, it must have found defendant intended for Doe to understand as true defendant's threat he was "going to fucking kill [her]." (See § 422, subd. (a); People v. Chandler (2014) 60 Cal.4th 508, 516 [intent element of criminal threats includes the specific intent" 'that the threat be taken as a threat, under circumstances sufficient to convey . . . an immediate prospect of execution' "].) Defendant does not argue he actually intended to kill Doe, nor was that an element of any of his convictions. (See §§ 273.5, 273.6, 422, 646.9.) Consequently, his threat to Doe was neither necessary nor incidental to the physical harm he inflicted upon her because the threat resembled a level of physical harm above and beyond that which defendant intended. On that basis, the trial court reasonably could have found defendant harbored separate intents. The trial court also could have reasonably inferred defendant harbored an intent to cause physical harm disconnected from his intent to criminally threaten Doe because defendant strangled Doe to near unconsciousness four to five times. The severity of defendant's assaultive conduct supports the inference that defendant had an intent to inflict harm separate from defendant's intent to demonstrate his criminal threat was true.
Defendant disagrees, arguing in one sentence, "[Both crimes] involved the same overarching objective, which was to inflict suffering on Ms. Doe, such that she felt like [defendant] was going to kill her." We take defendant to argue his infliction of corporal injury was the means by which he intended to make Doe understand the threat to her life was serious.
We note, however, the standard of review in this case is whether substantial evidence exists to support the trial court's finding of separate intents. (Raymundo M., supra, 52 Cal.App.5th at p. 94.) "If substantial evidence exists, it is of no consequence that the trial court believing other evidence or drawing other reasonable inferences might have reached a contrary conclusion." (Picerne Construction Corp. v. Castellino Villas (2016) 244 Cal.App.4th 1201, 1209.) The substantial evidence we observed, ante, suffices to affirm-the trial court could have reasonably found defendant harbored separate intents when he strangled Doe and then threatened her with physical harm greater than that which he intended to inflict. Moreover, the trial court also could have inferred defendant's assaultive conduct of strangling Doe to near unconsciousness not once, but four to five times, evinced an intent to physically harm Doe separate from, and not subservient to, defendant's intent to criminally threaten Doe.
Defendant also argues we should look even more broadly at his intent and conclude he acted with the overarching intent to inflict suffering upon Doe, with the intent to cause physical and emotional harm as necessary or incidental corollaries of his overall intent. Defendant relies on two cases for support: People v. Sexton (2019) 37 Cal.App.5th 457 (Sexton) and People v. Roles (2020) 44 Cal.App.5th 935.
In Sexton, the Fourth District Court of Appeal considered whether section 654 was applicable when the defendant physically assaulted the victim and pulled the victim by the hair when she tried to run after her children. (Sexton, supra, 37 Cal.App.5th at p. 471.) The Court of Appeal held that section 654 applied because the hair pulling was incidental to the defendant's intent to harm the victim. (Sexton, at p. 472.) The court acknowledged, "[A] subsidiary goal of the infliction of harm is to regain control of the individual," and reasoned, "the overarching objective throughout remains inflicting harm on the victim, and any subsidiary objectives-such as regaining physical control or shielding the harm from one's children-necessarily depend on the overarching objective and are therefore not independent." (Ibid.)
Defendant argues his intent to inflict physical and emotional injury were subsidiary goals to his overarching objective of inflicting harm on Doe in the same way the hair pulling was subsidiary to the intent to inflict harm in Sexton. Defendant focuses his attention on the following sentence from Sexton: "Substantial evidence therefore does not support an implied finding that any of Sexton's actions during the physical altercation were taken for a purpose other than his principal purpose, the infliction of physical and emotional harm on [the victim]." (Sexton, supra, 37 Cal.App.5th at p. 472.)
We disagree with defendant as to the validity of the analogy he seeks to draw between Sexton and the present case. In Sexton, the court extrapolated an overarching intent from two physical assaults, one of which-the hair pulling-was necessary to the continuance of the other. (Sexton, supra, 37 Cal.App.5th at p. 472.) Here, however, defendant seeks to extrapolate an overarching intent from a physical assault and a verbal assault, neither of which was necessary nor incidental to the other. Defendant need not have threatened Doe to continue beating her. Defendant also did not need to beat Doe to the extent he did to convince her that his threat was true. The extent of defendant's assaultive conduct suggests an intent separate from his intent to make Doe understand as true his criminal threat. We therefore decline to view the separate intents to cause physical and emotional harm here as subsidiaries of a broader intent to inflict suffering. (See Raymundo M., supra, 52 Cal.App.5th at p. 95; People v. Mejia, supra, 9 Cal.App.5th 1036, 1046-1047.)
Defendant argues this reasoning "fail[s] to appreciate that those harms are actually intertwined." Defendant states, "The criminal threats and corporal injury combined to produce suffering during the incident, even the feeling that death might be imminent, and combined to produce the lasting suffering from the emotional and related physical toll afterwards. The overarching objective was to cause suffering." We are unpersuaded. Emotional and physical harms are distinct harms, and while physical harm certainly leads to emotional harm, the intent to inflict emotional harm through physical harm carries with it the intent to cause both physical and emotional harm. And where a defendant harbors separate intents, commits separate acts, and substantial evidence supports a finding that the assaultive conduct was more than just a means to the other crime-as here-section 654 does not apply. (See People v. Latimer, supra, 5 Cal.4th at p. 1212; see also People v. Osband, supra, 13 Cal.4th at pp. 730-731; People v. Booth, supra, 201 Cal.App.3d at p. 1502.)
Finally, defendant argues his case is similar to People v. Roles, supra, 44 Cal.App.5th 935. In Roles, the defendant was convicted, in relevant part, of criminal threats and stalking based on 15 voicemails. (Id. at p. 947.) We held that section 654 applied, reasoning the basis of both convictions was all 15 voicemails: The stalking conviction required a repeated annoyance, and the criminal threats conviction required the victim to fear for her safety, which she testified was not the case until she listened to all 15 voicemails. (Roles, at pp. 947-948.) As we put it, "no' "separate and distinct act[s] can be established as the basis of each conviction." '" (Ibid.)
We also held the defendant in Roles could be convicted of only one criminal threats charge because the victim experienced only one period of sustained fear. (People v. Roles, supra, 44 Cal.App.5th at pp. 942-943.) Defendant argues that because Doe suffered only one period of sustained fear, as was the case in Roles, we must stay either the criminal threats or corporal injury sentence. The People correctly point out our reference to one period of sustained fear in Roles was in relation to our analysis of whether the defendant could be convicted on multiple criminal threats charges; the single period of sustained fear was irrelevant to whether the defendant could be punished for both stalking and criminal threats, except to the extent the single period of sustained fear demonstrated the same acts were the basis for both charges. (Id. at pp. 942-943, 947-948.) Here, defendant's corporal injury conviction rests on separate acts because a sustained period of fear is not one of the elements of corporal injury. (See § 273.5, subd. (a).)
In sum, we hold the trial court's section 654 finding is supported by substantial evidence.
II
The Trial Court Did Not Err By Imposing Consecutive Sentences
Defendant argues the trial court erred by imposing consecutive rather than concurrent terms for defendant's corporal injury and criminal threats convictions. The People argue defendant forfeited his claim by failing to object to the trial court's sentencing decision and, alternatively, defendant's claim is without merit. We decline to decide whether defendant forfeited this claim and instead exercise our discretion to adjudicate its merits in light of defendant's ineffective assistance of counsel claim. (See People v. Marlow (2004) 34 Cal.4th 131, 150 [Even where an issue has been forfeited, if the defendant "asserts his [or her] counsel thereby rendered ineffective assistance . . . we turn to the merits of the claim"].) On the merits, we disagree with defendant.
" '[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.'" (People v. Strother (2021) 72 Cal.App.5th 563, 571, quoting People v. Carmony (2004) 33 Cal.4th 367, 376-377.) Section 669, subdivision (a) provides, "When a person is convicted of two or more crimes . . . [the trial court] shall direct whether the terms of imprisonment . . . shall run concurrently or consecutively." California Rules of Court, rule 4.425(a) and (b) provide the factors affecting concurrent or consecutive sentences. "Only one criterion is necessary to impose a consecutive sentence." (People v. King (2010) 183 Cal.App.4th 1281, 1323.) Rule 4.421 lists the aggravating circumstances, which include-as relevant here-"[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness" and "[t]he victim was particularly vulnerable." (Rule 4.421(a)(1), (a)(3).)
Undesignated rule references are to the California Rules of Court.
Defendant argues the trial court abused its discretion by imposing consecutive sentences because there was "no basis to impose consecutive sentences under . . . rule 4.425, or any other authority." Not so.
The trial court stated the reasons for its sentencing decisions when denying defendant's request to be placed on probation. Specifically, it referenced defendant's infliction of severe pain, the severe nature of the crimes, and Doe's vulnerability. These reasons equally explain the court's consecutive sentence decision. (See People v. Powell (1980) 101 Cal.App.3d 513, 519 ["The court's clear articulation of the reasoning for its sentence choice fully satisfied the legislative purpose of providing a statement [that] would permit meaningful appellate review of the exercise of discretion in sentencing"].)
The trial court relied on two aggravating circumstances: (1) rule 4.421(a)(1)- "[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness"; and (2) rule 4.421(a)(3)-"[t]he victim was particularly vulnerable." Although the trial court did not specifically cite to those circumstances, we presume the trial court intended to when speaking to defendant's infliction of severe pain and Doe's vulnerability. (See People v. Bradford (2010) 187 Cal.App.4th 1345, 1355 ["absent a showing to the contrary, the trial court is presumed to have known and followed the applicable law"].) For these reasons, we reject defendant's argument that the trial court relied on the physical and verbal nature of the crimes, which he contends are elements of each crime, when deciding consecutive sentences were appropriate.
Defendant does not argue the record is unsupportive of the two aggravating circumstances. Instead, defendant argues the trial court accounted for the great violence and Doe's vulnerability when it imposed consecutive sentences for stalking and corporal injury. According to defendant, that left no rational basis to impose consecutive sentences for criminal threats and corporal injury. We disagree. "[T]here is nothing wrong with using [the same factors] to impose more than one consecutive sentence." (People v. Huber (1986) 181 Cal.App.3d 601, 628; see also People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12 [approving of Huber]; People v. Belmontes (1983) 34 Cal.3d 335, 347-348 [the same factors may be used in making more than one consecutive sentencing decision].)
Accordingly, we conclude the trial court did not abuse its discretion by imposing consecutive sentences for defendant's corporal injury and criminal threats convictions.
DISPOSITION
The judgment is affirmed.
We concur KRAUSE, J. MESIWALA, J.