IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAMES KWABENA AMOAKO, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. 08M05686, 08M05765, 08M06639 & 08F03996)
The opinion of the court was delivered by: Mauro , J.
P. v. Amoako
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant James Kwabena Amoako was convicted of felony spousal abuse, threatening to commit a crime that would result in death or great bodily injury, assault with force likely to produce great bodily injury, unlawful sexual penetration, and violating protective orders. He was sentenced to state prison.
Defendant contends on appeal that (1) his motion for mistrial should have been granted after the victim, V.B., volunteered testimony that defendant previously "forced sex" on her; (2) the trial court should have instructed the jury on the lesser included offense of misdemeanor battery of a spouse; and (3) his sentence for threatening to commit a crime that would result in death or great bodily injury should have been stayed pursuant to Penal Code section 654.*fn1
We conclude (1) the trial court did not abuse its discretion in denying the mistrial motion, because the challenged comment was brief, the trial court struck the comment and admonished the jury to disregard it, and this is not an exceptional case where the admonition was inadequate; (2) the trial court was not required to instruct on the lesser included offense of misdemeanor battery of a spouse, because the evidence was such that a jury could not have reasonably doubted whether the elements of felony spousal abuse were proven; and (3) the trial court was not required to stay defendant's sentence for criminal threat, because substantial evidence supports the trial court's implied conclusion that defendant's objective in making the threat was separate from, and not incidental to, his objective in committing felony spousal abuse.
We will affirm the judgment.
The charges against defendant stem from an altercation he had with V.B. on May 20, 2008. At defendant's trial, V.B. testified in detail about this altercation. In addition, the jury heard evidence of other instances where defendant engaged in assaultive and/or threatening conduct toward women.
Ja'Nay Lott, defendant's former spouse, was the prosecution's first witness at trial. Defendant and Ja'Nay were married from 2005 until 2006. In February 2004, defendant argued with Ja'Nay about her desire to drive to work separately. Defendant attempted to choke Ja'Nay. She hit defendant with a coffee cup. Defendant then slapped, punched, kicked, and stomped on Ja'Nay in the hallway. Ja'Nay entered her car and defendant dragged her out, threw her down on the front lawn, and continued to stomp on and kick Ja'Nay. Ja'Nay sustained multiple bruises and a black eye.
Later, in September 2005, defendant quarreled with Ja'Nay and then showed up at her work. As Ja'Nay walked out of work for the day, defendant chased her on foot through the parking lot. Ja'Nay arrived safely at her car and locked the doors. Defendant told Ja'Nay that he was her husband and she would be with him "by choice or by force."
Defendant married V.B. in February 2007. They lived together for two years before they were married, and they separated a few weeks after they were married.
On May 20, 2008, V.B. came home at approximately 8:15 to 8:30 a.m. after having spent the night elsewhere. V.B. explained her decision to sleep away from home:
"[PROSECUTOR:] Had you stayed the night in your home that preceding evening the 19th?
"[V.B.:] No. [¶]. . .[¶]
"[PROSECUTOR:] And so you did not stay the night in your home; you stayed elsewhere?
"[PROSECUTOR:] And how long had you -- how many days had you stayed the night elsewhere preceding May 20th?
"[V.B.:] It was a couple [of] days. It was on and off for the last couple weeks before that.
"[PROSECUTOR:] It was not the first time you had stayed a night away from your home?
"[PROSECUTOR:] And why did you stay the night or nights away from your home?
"[V.B.:] [Defendant] had threatened me numerous of times, but the main reason is I had to go to work, and he would like take my vehicle and I would not have a ride to work. And like three nights before that he had made me -- forced sex on me when I did not want it.
"[PROSECUTOR:] Okay. So because of physical abuse and you said taking your keys -- "
At this juncture, defense counsel asked to approach the bench and the trial court held a sidebar with counsel.
In the sidebar, based on V.B.'s testimony that defendant "forced sex on me," defendant requested a mistrial, which the trial court tentatively denied. The trial court, however, indicated it would allow defendant to further argue the mistrial motion outside the jury's presence later that day. After the sidebar, the trial court addressed the jury: "Ladies and gentlemen, as you noted already this morning, some times things come up during the course of the trial that require immediate attention which is why we have these sidebars. You shouldn't worry or speculate about why we have these sidebars, but I will just tell you it's to handle issues that pertain to the trial. [¶] I am going to strike the witness's last answer as to why she had stayed away from the house the night before and the several days before that, and I'm instructing you not to consider the answer which you obviously heard for any purposes whatsoever. [¶] [V.B.], I understand it's difficult for you to know exactly what the perimeters are of the answers you give, but I would ask you to listen as carefully as you can to the questions and try to keep your answers as close to the question as possible. Okay." V.B. nodded her head. Later, the trial court held proceedings outside the jury's presence during which the trial court further considered defendant's motion for a mistrial. After hearing oral argument, the trial court denied the motion.
Continuing on with her testimony, V.B. said that when she came home on the morning of May 20, 2008, she encountered defendant in the kitchen. Defendant was angry that she had been elsewhere. Defendant tried to hug V.B. and she pulled away. Defendant reacted by "[a]gressively trying to hug" V.B. V.B. went upstairs to her bedroom.
In the bedroom, defendant accused her of having sex with another man. Defendant was yelling and screaming. Defendant was saying things like, "It's my birthday" and "Who do you think you are," "Where have you been," and "You have been with some guy." When pressed further to elaborate on defendant's language, V.B. explained that defendant was saying things such as "Bitch, . . . who the fuck do you think you are? Where the hell you been? And I know you have been fucking somebody. And you have been -- you had some nigga at your best friend's house fucking him, and you don't want to fuck me." Defendant grabbed V.B. by the neck, lifted her up off her feet with her legs dangling, and threw her on the bed. Once V.B. was on the bed, defendant choked her. V.B. kept trying to move but defendant kept gripping her neck tighter. V.B. felt like she was going to black out. At first she said words to the effect of "I can't breathe," but defendant's grip became too tight and V.B. was unable to speak. Defendant was leaning over V.B. and he let go of her neck and backed up slowly. Defendant then uttered something like: "I'm going to kill you. But I'm not going to kill you today." Defendant made a similar comment at least one other time during the incident. V.B. believed him.
V.B. dialed 911 and threw the phone, figuring that doing so would provide more time for the call to go through. Defendant retrieved the phone and hung it up. The phone rang and defendant told V.B. not to say anything. Defendant answered and said hello. V.B. began yelling, "Can you come?" Defendant threw V.B. back on the bed. Defendant pinned V.B.'s hands over her head, using his left elbow. Defendant again accused V.B. of having sex with someone else and he put his right hand inside V.B.'s sweatpants. Defendant placed his fingers inside the "lip area" of V.B.'s vagina. Defendant then put his hand or fingers up to V.B.'s nose and demanded that she "smell it." Defendant exclaimed, "You have been having sex with somebody else," "I know you have," or words to that effect.
Nevertheless, defendant still wanted to have sex with V.B. because it was defendant's birthday. He told her "Bitch, you're going to fuck me because it's my birthday." V.B.'s hands were still pinned over her head. According to V.B., defendant had his elbow resting on the inside area of V.B.'s arm which hurt really bad. Defendant leaned toward V.B. and she leaned forward and bit him. Defendant responded, "Oh that feels good. Do it again." After she bit him a second time, defendant started to cry. At some point during the encounter in the bedroom, V.B. attempted to leave but defendant blocked her. V.B. could not pinpoint exactly when this occurred.
Eventually, the police arrived. V.B. spoke with the police and ultimately obtained a restraining order against defendant. Photographs of V.B.'s physical injuries were taken by law enforcement, submitted in evidence at trial, and shown to the jury on an overhead. V.B. explained that the pictures showed she had a bruised swollen eye, some redness and scratching on the back of her neck, and a bruise on her arm.
After defendant's arrest, he telephoned V.B. on several occasions, using an intermediary named Carla to make the calls. Among other things, defendant called V.B. a "bitch" who had "been out there fucking," said "I wish I would never did what I did to you, and I'm sorry," and admitted violating a restraining order. At trial, the prosecutor played tape recordings of defendant's telephone conversations. V.B. also testified about other prior incidents in which defendant pulled her hair and threatened to throw her out the window, slapped her, jumped on the hood of a vehicle and cracked the windshield, scratched her with her keys, forced her out of a restaurant and into her car, repeatedly hit her in the face and head, threw her down, and threw her against a wall.
The parties stipulated that defendant was previously convicted of inflicting injury on a spouse, cohabitant, or a fellow parent resulting in a traumatic condition.
In this case, defendant was charged with committing felony spousal abuse on V.B. (§ 273.5, subd. (a); count one), threatening to commit a crime that would result in death and great bodily injury to V.B. (§ 422; count two), assaulting V.B. with force likely to produce great bodily injury (§ 245, subd. (a)(1); count three), unlawful sexual penetration of V.B. (§ 289, subd. (a)(1); count four), and violating protective orders issued pursuant to the Domestic Violence Prevention Act (§ 273.6, subd. (a); counts five through ten). In connection with the first count, as an enhancement, it was alleged that defendant had a prior domestic violence conviction.
The jury found defendant guilty on all charges and the trial court found true the prior domestic violence conviction allegation. As to counts one, two, and four, the trial court sentenced defendant to an aggregate prison term of 13 years 8 months (five years on count one, eight months on count two, and eight years on count four, consecutive). On count three, the trial court imposed the middle term of three years but stayed the sentence pursuant to section 654.*fn2
The trial court imposed jail sentences on counts five and six that were equivalent to defendant's presentence credits. Concurrent jail sentences were imposed for counts seven, eight, nine and ten, so that defendant's credits were "used up" on counts five through ten.*fn3
Defendant contends the trial court prejudicially erred in denying his motion for mistrial after V.B. testified that defendant "forced sex" on her. We conclude the trial court did not abuse its discretion in denying the motion for mistrial.
"In reviewing rulings on motions for mistrial, we apply the deferential abuse of discretion standard." (People v. Wallace (2008) 44 Cal.4th 1032, 1068.) "'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]' [Citation.]" (Ibid.)
In his argument to the trial court, defense counsel contended that V.B. was "clearly" referring to a "rape," and the testimony was "clearly out of bounds" and "highly inflammatory." Counsel acknowledged, however, that the prosecution was not "responsible for [V.B.] volunteering the information."
The trial court agreed that V.B.'s testimony was volunteered and denied the motion, finding "no basis for a mistrial." The trial court noted that the challenged testimony was only a "portion of one sentence," it was "not very lengthy," and the jury may not have been as "attune[d]" or sensitive to it as the "experienced criminal attorney[s]" in the room. In addition, without referencing the challenged phrase separately, the entire answer was stricken and the jury was admonished not to consider it for any purpose. Furthermore, given the evidence of other domestic violence (such as Ja'Nay's testimony) that was introduced by the time of V.B.'s challenged testimony, and given all the anticipated evidence that would be admitted, including additional instances of defendant's assaultive conduct, the trial court regarded the "potential for prejudice" arising from V.B.'s challenged testimony as "almost miniscule."
Defendant argues that V.B.'s "explosive accusation" of uncharged "rape" was incurably prejudicial. But as the trial court noted, V.B.'s comment was just a brief portion of a larger answer. The trial court struck the larger answer without referencing the challenged phrase separately and admonished the jury to disregard it. We assume the jury followed the admonition. (See People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 292 [rejecting mistrial claim where problematic testimony was struck and the jury properly admonished].)
Defendant claims the admonition was inadequate, but we disagree. "'A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith[.] [Citations.] It is only in the exceptional case that "the improper subject matter is of such a character that its effect . . . cannot be removed by the court's admonitions." [Citation.]'" (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.) This is not an exceptional case. V.B. made the comment quickly, the circumstances of the alleged prior incident were unclear, and she did not elaborate further. Moreover, the numerous other incidents of defendant's aggressive and assaultive behavior diluted the potential for prejudice arising from V.B.'s brief ambiguous comment. Under the circumstances, the trial court was within its discretion in concluding that the comment was not incurably prejudicial. (People v. Collins (2010) 49 Cal.4th 175, 199 [rejecting mistrial claim where volunteered testimony was "brief and ambiguous"].)
Defendant nonetheless contends that V.B.'s testimony violated his Fifth and Fourteenth Amendment rights to due process and a fair trial. In support, defendant cites McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384 (McKinney). But McKinney and similar Ninth Circuit cases state that the "admission" of "other acts" evidence violates due process when "'there are no permissible inferences the jury may draw from the evidence.'" (Windham v. Merkle (9th Cir. 1998) 163 F.3d 1092, 1103, italics omitted (Windham) [quoting Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920]; McKinney, supra, 993 F.2d at p. 1384; Williams v. Stewart (9th Cir. 2006) 441 F.3d 1030, 1040 (Williams).) Here the trial court did not admit V.B.'s challenged testimony. Rather, the trial court struck the testimony and admonished the jury not to consider it for any purpose. (See Williams, supra, 441 F.3d at p. 1040 [no due process violation where trial court sustained defendant's objection and admonished the jury to disregard testimony].) Furthermore, a due process violation only occurs if the challenged evidence is "'of such quality as necessarily prevents a fair trial.' [Citations.]" (Windham, supra, 163 F.3d at p. 1103; McKinney, supra, 993 F.3d at p. 1384.) For the reasons already discussed, V.B.'s brief testimony is not of such quality.
Defendant next contends that the trial court was required to instruct the jury on misdemeanor battery of a spouse, a lesser included offense to felony spousal abuse. We disagree, because the evidence was such that a jury could not have reasonably doubted whether the elements of felony spousal abuse were proven.
"Instruction on a lesser included offense is required only when the record contains substantial evidence of the lesser offense, that is, evidence from which the jury could reasonably doubt whether one or more of the charged offense's elements was proven, but find all the elements of the included offense proven beyond a reasonable doubt." (People v. Moore (2011) 51 Cal.4th 386, 408-409.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense." (People v. Breverman (1998) 19 Cal.4th 142, 162; see also People v. Valdez (2004) 32 Cal.4th 73, 116.) We review de novo whether the trial court erred in failing to instruct on a lesser included offense. (People v. Cook (2006) 39 Cal.4th 566, 596.)
The jury found defendant guilty of felony spousal abuse under section 273.5, subdivision (a), which provides: "Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment."
The term "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." (§ 273.5, subd. (c).)*fn4
This court previously explained that section 273.5 is violated when the defendant inflicts even minor injury. (People v. Wilkins (1993) 14 Cal.App.4th 761, 771 (Wilkins).) Unlike other felonies, e.g., aggravated battery (§ 243, subd. (d)) which require serious or great bodily injury, the Legislature has clothed persons in intimate relationships with greater protection by requiring less harm to be inflicted before the offense is committed. (Ibid.) Under the expansive reach of the statute, bruising constitutes a traumatic condition. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085; U.S. v. Hall (9th Cir. 2005) 419 F.3d 980, 986.)
Misdemeanor battery on a spouse under section 243, subdivision (e)(1), is a lesser included offense to felony spousal abuse under section 273.5, subdivision (a). (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1457; People v. Jackson (2000) 77 Cal.App.4th 574, 580.) Section 243, subdivision (e)(1) provides: "When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiance, or fiancee, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment." For purposes of this crime, a "battery" is defined as "any willful and unlawful use of force or violence upon the person of another." (§ 242.)
Thus, felony spousal abuse requires a "traumatic condition," but misdemeanor battery on a spouse does not.
Defendant contends that the "lack of any fresh visible injury" on V.B. as a result of the May 20, 2008, incident calls into question whether defendant committed felony spousal abuse and, at the same time, constitutes substantial evidence supporting an instruction on misdemeanor battery of a spouse. Defendant cites testimony of Officer Jacobo, an officer who responded to the scene on May 20, 2008. Officer Jacobo testified that he did not recall seeing any visible injuries on V.B.'s neck area, that he did not observe any injury on the front of V.B.'s neck, and that there was no "apparent injure[y]" on the back of V.B.'s neck. Officer Jacobo acknowledged that the "only thing visible that [he] could see was" the bruise on V.B.'s arm. As to the arm bruise, defendant claims that there was no evidence fixing the age of the bruise. Defendant further notes that V.B. did not seek medical treatment after the incident.
According to defendant, a reasonable jury could have found that V.B. did not sustain injuries resulting in a "traumatic condition." We are not persuaded. Defendant ignores V.B.'s testimony, the photographic evidence, and the broad statutory definition of "traumatic condition."
V.B. testified in detail about the violent May 20, 2008, incident. She was questioned about the "pain" she experienced "as a result of what [defendant] did on May 20th, 2008." V.B. explained that she felt pain in her neck, had "a bruise on [her] arm," and experienced "really bad headaches." Later in the trial, the prosecution admitted into evidence several photographs of V.B., marked as People's exhibits 1 through 8. The prosecution then asked V.B. questions about the photographs.
Exhibits 1 through 4 were included in the record on appeal. According to V.B.'s testimony, exhibit 1 shows her left eye is "bruised, like swollen." V.B. stated that the photograph was taken on May 20, 2008, or possibly the day after.
Regarding exhibit 2, a closeup shot of the back of V.B.'s neck, V.B. explained that it showed "[t]he scratching. There is some red area where the scratch is on my neck."
V.B. testified that exhibit 3 depicted the bruise on her arm from the May 20, 2008, incident:
"[PROSECUTION:] And People's Exhibit 3?
"[PROSECUTION:] And what are we looking at there?
"[V.B.:] That is where he had his elbow in my arm holding me down.
"[PROSECUTION:] Is that the bruise you described on your arm from May 20th, 2008?
V.B. further testified that exhibit 4 was a closeup of the same bruise as depicted in exhibit 3.
The jury was shown those photographs, among other exhibits. In those photographs, the setting (a grayish wall in the background) and V.B.'s attire (a red shirt) are the same. Officer Jacobo acknowledged that he was present when V.B.'s injuries were photographed.
In light of V.B.'s testimony and the admitted photographs, there was ample evidence that V.B. sustained bruising to her eye and arm from the May 20, 2008, incident. Officer Jacobo confirmed that V.B. had bruising on her arm (he observed it), and in V.B.'s unrebutted testimony she specifically linked the bruising on her arm, as reflected in exhibit 3, to the May 20, 2008, incident. Further, Officer Jacobo testified that V.B. told him at the scene that the bruise on her arm, as depicted in exhibit 3, was caused during the altercation with defendant.
In his reply brief defendant attempts to downplay the significance of V.B.'s arm bruise, calling it a "small bruise." However, a "traumatic condition" includes even a "minor" wound or external injury. (§ 273.5, subd. (c); Wilkins, supra, 14 Cal.App.4th at p. 771.)
Defendant also argues that the bruise on V.B.'s arm, as depicted in exhibit 3, appears "older," suggesting that it could have been caused by an earlier incident or occurrence. But neither defendant's selective argument nor his speculation constitute the substantial evidence needed to warrant a lesser included offense instruction. (People v. Redd (2010) 48 Cal.4th 691, 733; People v. Mendoza (2000) 24 Cal.4th 130, 174.)
The state of the evidence was such that a jury could not have reasonably doubted whether the elements of felony spousal abuse under section 273.5, subdivision (a) were proven. Accordingly, the trial court did not err by not instructing on misdemeanor battery of a spouse. (People v. Huggins (2006) 38 Cal.4th 175, 215-216.)
Defendant further contends that pursuant to section 654, his conviction for making a criminal threat (count two) should not result in a separate punishment from his conviction for felony spousal abuse (count one). We conclude, however, that the trial court was not required to stay defendant's sentence for criminal threat, because substantial evidence supports the trial court's implied conclusion that defendant's objective in making the threat was separate from, and not incidental to, his objective in committing felony spousal abuse.
Subdivision (a) of section 654 provides that "[a]n 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." When multiple offenses are committed during a course of criminal conduct deemed "indivisible," the offenses are treated as only one punishable act under section 654. (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).)
"Whether a course of criminal conduct is divisible and therefore gives rise to more than one [punishable] act within the meaning of section 654 depends on the intent and objective of the actor" (People v. Beamon (1973) 8 Cal.3d 625, 637, italics omitted), "not the temporal proximity of his offenses" (Harrison, supra, 48 Cal.3d at p. 335). "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once." (Harrison, supra, 48 Cal.3d at p. 335.)
If, however, the "defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (Harrison, supra, 48 Cal.3d at p. 335; see also People v. Britt (2004) 32 Cal.4th 944, 951-952 (Britt); People v. Lewis (2008) 43 Cal.4th 415, 519.)
By way of illustration, in In re Hayes (1969) 70 Cal.2d 604 (Hayes), the court held that section 654 was inapplicable to a defendant who simultaneously drove while intoxicated (former Veh. Code, § 23102) and with knowledge that his license was suspended (Veh. Code, § 14601). Neither crime, "'though simultaneously committed, was a means toward the objective of the commission of the other. The objectives, insofar as the criminal conduct was concerned, were deemed by the [Hayes] majority to be to drive while intoxicated and to drive with a suspended license.' [Citation.]" (People v. Perez (1979) 23 Cal.3d 545, 551-552, fn. 4 (Perez) [discussing Hayes]; see also Britt, supra, 32 Cal.4th. at p. 953 [same].)
Whether the defendant harbored separate objectives during a course of criminal conduct is primarily a question of fact for the trial court. (Harrison, supra, 48 Cal.3d at p. 335; People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We review a challenge under section 654 for substantial evidence to support the trial court's determination. (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.) This deferential standard of review applies whether the trial court's determination is explicit or, as here, implicit. (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585.) "We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) A claim that a sentence violates section 654 can be made, as here, for the first time on appeal. (People v. Scott (1994) 9 Cal.4th. 331, 354, fn. 17.)
The parties agree that the criminal threat at issue is defendant's comment to V.B. during the May 20, 2008 incident to the effect of "I'm going to kill you. But I'm not going to kill you today." In closing argument, the prosecution argued it was this threat that supported a conviction on count two.
Defendant argues that the "record does not provide substantial evidence to support the trial court's implied finding that the spousal [abuse] (count 1) and the criminal threat (count 2) convictions involved separate, independent objectives. . . . The criminal threat was perpetrated during an indivisible course of conduct, with a single purpose of assaulting [V.B.]. The threat was perpetrated to facilitate the assault; no other interpretation of the record is reasonable." We disagree.
In light of the record and what can be rationally deduced, substantial evidence supports the trial court's implied conclusion that defendant's objective in making the criminal threat was separate from, and not incidental to, his objective in committing felony spousal abuse.
The trial court could have reasonably concluded that defendant's objective in committing felony spousal abuse was to inflict physical harm upon V.B. as immediate retaliation for her perceived infidelity and as a means to facilitate sexual contact with her. Defendant's threat to kill V.B. served a different purpose, to instill fear in her of looming doom. Defendant released his grip on V.B.'s neck, backed up slowly, and uttered his threat. Defendant did not issue his death threat simply to help him physically abuse V.B. These were divisible crimes. (Cf. People v. Solis (2001) 90 Cal.App.4th 1002, 1022 [finding distinct objectives in defendant's threats, i.e., "to frighten," and his commission of arson an hour later, i.e., "to burn"].)
In reply, defendant argues that both acts -- the spousal abuse and the criminal threat -- had the same objective, i.e., to "dominate" V.B. But the California Supreme Court has cautioned against framing a criminal objective for section 654 purposes in terms "too broad and amorphous." (Perez, supra, 23 Cal.3d at p. 552.) Under a section 654 analysis, we do not determine whether defendant's crimes can be ultimately linked to, and characterized by, an abstract motive or desire, but whether the trial court's implied finding that defendant harbored different objectives in committing these crimes is supported by substantial evidence. Here, the implied finding is supported by substantial evidence.
The judgment is affirmed.
We concur: NICHOLSON , Acting P. J. BUTZ , J.