(Super. Ct. No. NCR79498)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
By amended information, defendant Benjamin Michael Bennett was charged as follows: Count I, making criminal threats against Matthew Lane; count II, making criminal threats against Amy McCarty; count III, corporal abuse of a cohabitant (McCarty); and count IV, false imprisonment by violence (McCarty). A jury acquitted defendant of count I; acquitted him of making criminal threats in count II, but convicted him of the included offense of attempted criminal threats; acquitted him of cohabitant abuse in count III, but convicted him of the included offenses of assault and battery; and convicted him of false imprisonment in count IV. Out of the jury's presence, defendant admitted a prior serious felony strike conviction and having served three separate prior prison terms.
Sentenced to 13 years 8 months in state prison, defendant appeals, contending (1) the trial court abused its discretion when it denied his motion for a mistrial, which was based upon the jury's hearing a recording that referenced defendant's being on parole; (2) his counsel was prejudicially ineffective for failing to discover the parole reference in the recording; and (3) the trial court violated Penal Code section 654 by separately punishing him for both the attempted criminal threats and the false imprisonment convictions. We reject defendant's first two contentions, but we agree with him on the third.
Matthew Lane, Amy McCarty, Dennis Cahalan, and defendant were living together in an apartment at the Crystal Motel in Red Bluff in 2010. Lane and McCarty were romantically involved, but the relationship ended and he moved out of the apartment after he struck her in the face and broke her nose. McCarty then became sexually involved with defendant.
According to McCarty, on June 1, 2010, about 4:00 p.m., McCarty was outside the apartment when she was approached by Lane and the two began conversing. Defendant came out of their apartment and demanded that Lane leave. McCarty talked with defendant and the two returned to the apartment, but a few minutes later defendant went back outside. Defendant returned after a few minutes, and as they spoke, she noticed he had a knife in his hand.
Officer Sean Baxter testified Lane told him that when defendant came back out he had a knife, defendant threatened to kill Lane, Lane ran, and defendant could not catch him. Lane, however, testified that defendant never threatened him or chased him, nor did he tell Officer Baxter that such had occurred.
Later that same evening, McCarty was speaking with a woman outside the apartment when defendant came outside and asked to see McCarty's cell phone; she thought defendant wanted to find out whether she had been sending text messages to Lane. When defendant discovered text messages from Lane, he broke McCarty's cell phone and threw it at her, picked her up by her hair, carried her into the apartment, and dropped her on the floor. Defendant placed his hands around McCarty's throat, lifted her up so that her feet were not touching the floor, threw her on a couch, and slapped her. When McCarty tried to get up, defendant jumped on her and told her to "Sit the fuck down" because he did not want to hurt her. McCarty managed to calm defendant by telling him she knew "he didn't mean to [hurt her]."
The next morning, June 2, defendant told McCarty that if he saw her and Lane together, ...