IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
March 11, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JEFFREY HAWORTH, DEFENDANT AND APPELLANT.
(Super. Ct. No. SF112172A)
The opinion of the court was delivered by: Robie , J.
P. v. Haworth CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Jeffrey Haworth not guilty of attempted murder, but guilty of false imprisonment by violence; inflicting corporal injury on a cohabitant with great bodily injury; evading a police officer; obstructing, delaying, or resisting a police officer; and the infraction of failing to stop at a stop sign. Defendant appeals, contending (1) the domestic violence count lacks substantial evidence of cohabitation; (2) Penal Code section 654, which prohibits multiple punishment for the same conduct violating multiple statutes, requires a stay of sentence on the conviction for false imprisonment because it had the same objective as the domestic violence; and (3) Penal Code section 654 requires a stay of sentence on the conviction for resisting an officer, because that count had the same objective as the separate conviction for evading an officer. We modify the abstract of judgment to correct a clerical error and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The crimes occurred on June 6, 2009. Because the victim refused to testify at the December 2009 trial, the jury heard her testimony from the July 2009 preliminary hearing, at which she said defendant was her boyfriend for about a year and a half before the charged offenses, and they lived together, first in "our" apartment and then, after they lost the apartment, they lived in "our" truck and in a shelter. On the day in question, defendant and the victim drove home the victim's friend Danielle (who did not testify at trial). The victim wanted to go with Danielle, but defendant, who was angry with Danielle, forced the victim to stay in the truck by holding her neck in a chokehold. He also pulled her hair and punched her in the face, resulting in a bloody nose and two missing teeth. The victim was afraid. As they struggled, the truck hit a tree.
The victim fled from the truck, but defendant caught her and tackled her to the ground. He choked her with his hands. She vomited and blacked out. When she came to, he was choking her. Danielle helped the victim get away.
The jury also heard evidence of the victim's partial recantation. During trial, she left a voice mail message for defense counsel, indicating her mouth was injured, not by defendant, but by the truck hitting the tree. Defense counsel and a co-worker met with the victim. The co-worker testified the victim said defendant was not trying to hurt her but was merely trying to stop her from consuming methamphetamine with Danielle. The victim said she was under the influence of methamphetamine at the time of the charged offenses and at the time of her preliminary hearing testimony. She did not remember what happened, and her prior statements were mere repetitions of what she heard from Danielle. The victim was reluctant to testify because she was going to prison on unrelated drug charges and did not want to be labeled a "snitch."
A police officer testified he responded to the June 6, 2009, altercation, in his marked patrol car. Defendant, who had gotten back into his truck, led the officer on a nine-mile, high-speed car chase, ignoring the patrol car's lights and siren, and ignoring red lights and a stop sign. The chase ended when defendant crashed his truck into a fence.
Defendant fled on foot and broke into a private home. The officer followed and tackled defendant to the floor. Defendant refused the officer's commands to bring his hands out from under his body and had to be forced to do so.
A sheriff's deputy testified he spoke with the victim and defendant on March 19, 2009 (two and a half months before the current offenses), in responding to a reported disturbance at a residence. The victim had red marks on her neck and the upper part of her chest. Defendant said the victim was his girlfriend; her skin was red because she had a problem with "being blotchy"; and he had simply hugged her neck, "[l]ike he always does." The deputy, who had checked the victim's identification, noted the victim's emotional state in the "domestic violence section" of his report.
A forensic pathologist testified mechanical asphyxiation (choking another person) may cause vomiting and may also cause a person to lose consciousness if the pressure is sustained for at least three minutes.
On January 8, 2010, the jury returned verdicts finding defendant not guilty of attempted murder but guilty on the remaining charges. The jury found true the great bodily injury allegation on the domestic violence charge.
On February 19, 2010, the trial court sentenced defendant to prison for nine years four months, as follows: The upper term of four years for domestic violence; four years for the great bodily injury enhancement; eight months for false imprisonment; and eight months for evading an officer. The court imposed a concurrent one-year jail term for the misdemeanor of resisting arrest.
I Substantial Evidence Of Cohabitation
Defendant argues the domestic violence conviction must be reversed because there was insufficient evidence that he and the victim lived together long enough for her to be his "cohabitant" under Penal Code section 273.5.*fn1 We disagree.
In reviewing a challenge to the sufficiency of the evidence, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Case law broadly interprets the cohabitation element of section 273.5. (People v. Moore (1996) 44 Cal.App.4th 1323, 1333 (Moore) [person may cohabit simultaneously with two or more people].) The term requires something more than a platonic, rooming-house arrangement. (People v. Holifield (1988) 205 Cal.App.3d 993, 999 (Holifield).) Cohabitation means two unrelated adult persons living together for a "'substantial period of time, resulting in some permanency of relationship.'" (Id. at p. 1001.) Factors that may determine whether persons are cohabiting include, but are not limited to, sexual relations between the parties while sharing the same living quarters, sharing income or expenses, joint use or ownership of property, and the continuity of the relationship and the length of the relationship. (Ibid.) Holifield found substantial evidence of cohabitation where the defendant, who had been "seeing" the victim off and on for four years, lived with the victim at her hotel room for half or more of the three months preceding the assault, slept with and had occasional sex with her, but did not return her romantic feelings, left no belongings there, and rarely ate there. (Id. at pp. 995, 1002.)
Consistent with these authorities, the jury here was instructed with CALCRIM No. 840, which provides: "The term cohabitants means two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties' holding themselves out as (husband and wife/domestic partners), (5) the continuity of the relationship, and (6) the length of the relationship."
Latching onto the phrase, "living together for a substantial period of time," defendant argues the jury did not hear any testimony as to how long defendant and the victim lived together.
However, the jury heard evidence that defendant and the victim had lived together at least two and a half months at the time of the June 2009 charged offenses. The deputy who responded to the March 19, 2009, disturbance testified he checked the victim's identification, and he noted her emotional state in the "domestic violence" section of the report. This supports an inference that defendant and the victim were cohabitants in March 2009. The deputy also testified defendant said the victim was his girlfriend. Additionally, the victim testified she and defendant lived together, first in "our" apartment, and then "after we lost our apartment, we were living in our truck" (italics added) and a shelter. There is no evidence they split up between the March and the June disturbances.
Two and a half months is a substantial enough period of time to be cohabitants, given the presence of other factors, i.e., they had joint use or ownership of property (the apartment and the truck), they dated for a year and a half, and he loved her (as he stated while he restrained her in the truck). As indicated, Holifield found a couple of months of sharing a room sufficient to establish cohabitation. (Holifield, supra, 205 Cal.App.3d at pp. 995-996, 1002.) We similarly found two months sufficient in People v. Belton (2008) 168 Cal.App.4th 432 (Belton), where we rejected the defendant's contention that his two-month relationship with the victim was not permanent or long enough to qualify as cohabitation under section 273.5. (Id. at pp. 438-439.) There the evidence did not show how much of the two months the defendant and victim lived together. (Id. at p. 438.)
Defendant argues Belton, supra, 168 Cal.App.4th 432, dealt with the duration and permanency of the romantic relationship, whereas here the issue is how long they lived together. This point does not help defendant, who lived with his victim longer than the entire relationship of the defendant and victim in Belton.
In a footnote, defendant complains the prosecutor suggested to the jury in her rebuttal argument that she needed to prove only that defendant and the victim were in a dating relationship. Defendant acknowledges he forfeited this point by failing to object in the trial court. He says he raises the point now, not as a separate claim of error, but to "further illustrate" the prosecution failed to meet its burden. Defendant is wrong.
Substantial evidence supports the judgment.
II Section 654 -- False Imprisonment And Domestic Violence
The trial court sentenced defendant to the upper term of four years in prison for the domestic violence count (plus a consecutive four-year term for the great bodily injury enhancement) and a consecutive eight-month term for the false imprisonment by violence count.
Defendant contends the trial court violated section 654 by failing to stay his sentence for false imprisonment by violence, because that offense was not shown to have a separate objective from defendant's conduct underlying the conviction for inflicting corporal injury on a cohabitant. Defendant did not raise this point in the trial court but notes section 654 may be raised for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) We see no section 654 problem.
Section 654 provides in part, "(a) 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. . . ."
"[I]t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.]" (People v. Perez (1979) 23 Cal.3d 545, 551.) If all the offenses were incident to one objective, the defendant may not be punished for more than one, e.g., a defendant who attempts murder by setting fire to the victim's bedroom could not be punished for both arson and attempted murder, because his primary objective was to kill, and the arson was the means of accomplishing that objective and thus merely incidental to it. (Ibid.) "On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. [Fn. & citations omitted.]" (Ibid.) For example, the objectives to drive while intoxicated and to drive with a suspended license were separately punishable, though they occurred simultaneously. (Id. at p. 552.) The purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability. (Id. at p. 552, fn. 4.)
"A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. [Citation.]" (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Here, the trial court said it imposed the upper term on the domestic violence count because defendant would not have stopped the attack but for the intervention. With respect to the false imprisonment count, the trial court said it listened to "how she was treated in the truck when she tried to get away, when she tried to get away when she was on the ground." The court chose a consecutive midterm for the false imprisonment count because the victim was particularly vulnerable as a domestic violence victim.
Although the trial court made reference to false imprisonment when the victim was on the ground, the trial court was not asked to and did not expressly address section 654, and the evidence supports the trial court's implied finding that section 654 authorized separate punishment. The objective of the false imprisonment in the truck was to prevent the victim from leaving the truck. Once she left the truck, defendant's objective in choking the victim was to hurt her, not to imprison her -- as evidenced by the fact that he kept choking her on the ground after she blacked out instead of counteracting Danielle's interference and carrying the unconscious victim to the truck.
Defendant suggests the prosecutor impliedly conceded an indivisible course of conduct by arguing to the jury that domestic violence occurred in the truck. However, the prosecutor did not argue defendant's objective on the ground was to imprison the victim. That defendant used violence both in the truck and on the ground does not establish a single indivisible course of conduct with a single objective.
Defendant cites People v. Perry (2007) 154 Cal.App.4th 1521 (Perry), where the defendant broke into the victim's car to steal a car stereo, was inside the car when the victim arrived, jumped out holding the car stereo in one hand and a screwdriver or ice pick in the other, and was caught as he tried to run away. (Id. at p. 1523.) The appellate court held section 654 prohibited the trial court from sentencing the defendant to concurrent terms for two crimes -- second degree robbery and second degree vehicular burglary -- where the underlying objective for the robbery (to steal the victim's car stereo) was necessarily identical with the objective of the burglary, even though the robbery entailed a different type of action (an implied threat to use the screwdriver or ice pick in confronting the victim). (Id. at pp. 1525-1527.) The appellate court said the trial court, which rejected the defendant's section 654 objection, erred by focusing on the fact that the burglary (entry of the car with intent to steal) was complete before the robbery occurred. (Id. at p. 1527.)
In contrast to Perry, here there is no trial court error. Moreover, Perry does not help defendant in this case. Perry said the implied threat of force in the robbery was merely incidental to the objective of stealing the stereo, but the result might be different if the second offense were for an assault on the person trying to prevent the theft. (Perry, supra, 154 Cal.App.4th at pp. 1526-1527.) Assault carries an independent objective of performing an act likely to result in the application of physical force to another person. (Id. at p. 1526.) Here, defendant had a clear objective to cause physical injury to the victim, independent of his objective of restraining her freedom.
Defendant cites People v. Martinez (1980) 109 Cal.App.3d 851, which held in one short paragraph that the trial court erred in imposing sentence for both assault with intent to commit rape and false imprisonment, because they involved the same criminal event. (Id. at pp. 854, 858.) The defendant assaulted his victim, dragged her under a bridge and, after he stopped trying to rape her, held her for a few moments to attempt to convince her not to go to the police. (Id. at p. 858.) Martinez was criticized in People v. Saffle (1992) 4 Cal.App.4th 434, which held the trial court did not violate section 654 by imposing separate punishment for sex offenses and false imprisonment, because the false imprisonment had the separate objective of attempting to dissuade the victim from reporting the sex crimes. (Id. at p. 440.) Here, the false imprisonment in the truck preceded and had an objective independent of the subsequent infliction of corporal injury.
We conclude section 654 does not require a stay of the eight-month sentence for false imprisonment.
III Section 654 -- Resisting And Evading Police Officer
Defendant argues the trial court violated section 654 by failing to stay his one-year jail sentence for the misdemeanor offense of resisting, delaying, or obstructing a police officer, in light of his eight-month consecutive sentence for the felony offense of evading an officer. We disagree.
The car chase violated Vehicle Code section 2800.2, which provides in part, "(a) If a person flees or attempts to elude a pursuing peace officer in violation of [Vehicle Code] Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished . . . ." Vehicle Code section 2800.1 states in part, "(a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor . . . ."
Once the car chase ended and the officer tackled defendant to the floor inside the stranger's house, defendant's flight activity ended, and he engaged in separate conduct of refusing the officer's commands for defendant to remove his arms from under his body. This latter conduct delayed and obstructed the officer, apart from defendant's prior attempt to flee, in violation of section 148, which provides in part: "(a)(1) Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment . . . shall be punished . . . ."
The People argue the obvious gravamen of the Vehicle Code charge is evasion of an officer by means of recklessly driving a vehicle. However, Penal Code section 654 turns on a defendant's objective in violating the statutes, not the Legislature's purpose in enacting them. (People v. Martin (2005) 133 Cal.App.4th 776, 781.)
There were two objectives here. The first was defendant's objective to flee in his vehicle. Then, once the officer tackled defendant to the ground inside the house, and fleeing was no longer an option, defendant, by refusing the officer's commands to bring his hands out from under his body, had the objective of delaying the inevitable.
We conclude there is no section 654 violation.
IV Other Matters
We make two final points.
First, we observe defendant does not benefit from recent amendments to sections 2933 and 4019 (presentence conduct credits), because the January 2010 amendments do not apply to a defendant who inflicts great bodily injury on a person under section 12022.7 (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50 (Sen. Bill No. 3X 18)), and the September 2010 amendments apply only to crimes committed on or after that date (Stats. 2010, ch. 426 (Sen. Bill No. 76)).
Second, the abstract of judgment erroneously says the great bodily injury enhancement (§ 12022.7) attaches to count one -- the attempted murder charge -- of which defendant was acquitted. In fact, the enhancement attaches to the domestic violence charge, count four.
The abstract of judgment is modified to show the section 12022.7 enhancement attaches to count four, infliction of corporal injury on a cohabitant, section 273.5. The trial court shall send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: RAYE , P.J. MAURO ,J.