Opinion
E044188
2-9-2009
THE PEOPLE, Plaintiff and Respondent, v. ALBA YANIRA CARCAMO, Defendant and Appellant.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Scott C. Taylor, Pamela Ratner Sobeck, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
I. INTRODUCTION
A jury found defendant guilty as charged of the first degree burglary of a residence while a person, not an accomplice, was present (Pen. Code, §§ 459, 667.5, subd. (c)(21); count 1), false imprisonment (§ 236; count 2), criminal threats (§ 422; count 3), and assault with a firearm (§ 245, subd. (a)(2); count 4). Defendant was sentenced to the middle term of four years on count 1. Concurrent middle terms of two, two, and three years, respectively, were imposed on counts 2 through 4.
All further statutory references are to the Penal Code unless otherwise indicated.
The evidence presented at trial showed that defendant committed all four crimes during the early morning hours of June 2, 2006, when she entered the apartment of her then-husband, Juan T., with a gun and demanded that he agree to allow defendant joint or full custody of the couples three children. Defendant and Juan were engaged in contentious divorce proceedings, and Juan had recently been awarded full custody of the children.
On this appeal, defendant claims the prosecutor committed Doyle error by asking her during cross-examination whether, at any time following her June 2, 2006, arrest and before trial, she told "anyone" other than her attorney the "story" she testified to at trial—that is, that she went to Juans apartment on the evening of June 1 to speak with him about visiting the children and she neither threatened, assaulted, nor falsely imprisoned Juan. Defendant also claims that the trial court erroneously failed to stay, under section 654, the concurrent terms it imposed on counts 2 through 4, because the evidence indisputably showed that her sole intent and objective in committing all four crimes was to demand custody of the three children from Juan.
Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).
We agree that the prosecutor committed Doyle error, but conclude the error was harmless beyond a reasonable doubt. We agree that the sentences on counts 2 through 4 should have been stayed under section 654, because the undisputed evidence indeed showed defendant committed all four crimes with the single intent and objective of demanding custody of the children from Juan. We therefore amend the judgment to stay the terms imposed on counts 2 through 4 and affirm the judgment in all other respects.
II. THE EVIDENCE PRESENTED AT TRIAL
A. Prosecution Evidence
Three witnesses testified for the prosecution, namely, defendants ex-husband Juan, defendant and Juans daughter J.T., and Palm Springs Police Officer Samuel Steepleton.
1. Juans Testimony
On June 1 and 2, 2006, Juan was living in a one bedroom apartment in Palm Springs with his and defendants three children, D.T., then age 11, J.T., then age 10, and S.T., then age 8. Juan and defendant were married in 1994 but separated and stopped living together in 2001. As of June 1 and 2, Juan and defendant were engaged in divorce proceedings. On June 1, Juan received a notice from the court in the mail confirming he had full custody of the children, and that defendant had supervised visits on Saturdays and could contact the children by phone for one hour every Tuesday and Thursday. June 1 was a Thursday, and on that day Juans only phone, his cell phone, had been disconnected for around one day.
Around 9:00 p.m. on June 1, the children went to bed in the bedroom, and Juan went to sleep in the living room around 11:00 p.m. Around 1:00 a.m. on June 2, Juan was awakened by a knock at the front door. He did not answer but looked outside a small side window of the apartment and saw nothing. He went into the bedroom, where the back door to the apartment was located, to see whether anyone was knocking on the back door. He then heard someone knocking on the large window in the living room next to the front door, and returned to the living room. He could not see through the large window, which was about five feet by six feet in size, because its horizontal blinds were closed. After a moment, the large window was "smashed in," creating a loud noise. Photographs of the broken window were admitted into evidence.
Juan then saw a gun pointing through the large window and heard defendant say, "Open the door . . . or Ill shoot." Juan was "terrified" and believed defendant was going to shoot him, so he opened the door and let her inside. Defendant was carrying the gun as she came inside, and Juan saw that the gun was a semiautomatic. Defendant put a magazine or clip in the gun, pointed it at Juan, and said, "You took my kids away. Im here to kill you." She also said Juan had gotten what he wanted, "there was no reason for her to live anymore," and she "had a crazy look in her eye." Juan saw that defendant had "cuts" on one of her arms, which were exposed because she was wearing a tank top.
At the preliminary hearing, Juan testified that defendant also told him to open the door or she would come through the window, but at trial Juan did not recall defendant making that additional statement.
After defendant came into the apartment, she and Juan stayed in the living room and talked for three hours. During this time, defendant made additional and "numerous threats" against Juan. She also told him she had stalked him in the past without his knowledge and could have shot him at any time. She also said "she was going to kill herself so she could be next to the children forever." She pointed the gun at herself several times, and said she wanted the "cops" to come so they could shoot her.
When defendant first came into the apartment, none of the children came out of the bedroom or appeared to have been awakened, although the door to the bedroom was half-open. But around three hours after defendant arrived, J.T. came into the living room. Defendant was seated at a table and was pointing the gun at herself, but put the gun under her leg when J.T. came into the room. J.T. asked defendant why she was there, and defendant asked J.T. why she was awake. J.T. said she was cold and gave defendant a hug. Defendant told J.T. that she and Juan were just talking, told J.T. to get a blanket, and told J.T. to go back to sleep. J.T. then left the room.
According to Juan, defendants "demeanor kind of changed" after J.T. returned to the bedroom, and defendant "kind of realized that she shouldnt be there [and] . . . seemed a little bit more relaxed." At that point, Juan asked defendant, "[H]ow can we end this?" Defendant told Juan to sign a statement giving her "full custody" of the children, and Juan signed the statement. After Juan signed the statement, defendant pulled the clip or magazine out of the gun, released one bullet, and said it was the only bullet she had in the gun. Defendant then put the bullet and the written statement in her pocket, and left the apartment.
At the preliminary hearing, Juan testified that defendant demanded he agree to allow her "joint" custody of the children. When asked at trial about the discrepancy between his preliminary hearing and trial testimony, Juan indicated he did not recall whether defendant demanded full or joint custody.
Juan locked the doors, turned out the lights, and woke the children. He told the children to dress and that they had to leave, their mother had been in the apartment and had a gun, he did not know whether she was still around, and they were going to the nearby 7-Eleven store. Juan and the children went out through the back door of the apartment, went to the alley, and jumped over a fence. At the 7-Eleven store, Juan told the clerk what had happened. The clerk escorted Juan and the children to a bathroom near the back of the store. There, Juan locked himself and the children inside and called 911 with a phone the clerk had given him. Juan did not call 911 from his apartment because his only phone, his cell phone, was disconnected.
Juan gave police defendants name, a description of her and her vehicle, and the address where he believed she was living in Desert Hot Springs. On cross-examination, Juan testified that, before defendant entered the apartment, he did not know that she owned or had a gun or that she was at that time employed as an armed security guard. On June 2, Juan obtained a restraining order against defendant. A restraining order was in place at the time of trial in May 2007.
2. J.T.s Testimony
J.T. was 11 years old at the time of trial in May 2007. During the night of June 1 and 2, she recalled hearing the front window of the apartment break; it sounded like "a cracking noise." She "barely" woke up after she heard the window break, and went back to sleep. Later, she heard voices and woke up "fully." She then woke her younger sister, S.T., asked S.T. what was going on, and S.T. said she did not know. J.T. and S.T. then "peek[ed]" out of the bedroom door which was "[a] little bit open." They saw lights on in the living room and saw their parents. They tried to wake their brother, D.T., but he did not wake up.
At that point, J.T. went into the living room and asked her father whether she could use one of the blankets that were in the living room because the one in her closet was too high for her to reach. She grabbed a blanket that was near the front window. She saw "a little piece of glass on the floor." Then, she said "hi" to her mother and gave her mother a hug. She did not see a gun, but saw that her mother had a cut on her upper arm near her shoulder. The cut was "bleeding but it was dry." She then went back to bed.
Shortly thereafter, J.T.s father came into the bedroom and told the children to "go outside [through] the back door, jump over the brick wall, and run to 7/11." He explained they had to do that because their mother was coming back. After J.T., her father, and her siblings returned to the apartment from the 7-Eleven store, J.T. saw that the front window was broken and "there was a little bit of blood on it."
3. Officer Steepletons Testimony
Around 4:00 a.m., Officer Steepleton arrived at the 7-Eleven store in response to Juans 911 call. After speaking with Juan, Officer Steepleton broadcasted a physical description of defendant and her vehicle, her home address in Desert Hot Springs, and the fact she was reportedly armed and wanted to "die by police officer." He directed the dispatcher to relay the information to the Desert Hot Springs police. He then searched the area around the 7-Eleven store and Juans apartment for defendant and her car, but found neither. He checked inside the apartment to be certain defendant was not there.
At the apartment, Officer Steepleton saw that the front window of the apartment had been smashed in and there was glass below the window inside the apartment. A short time later, Officer Steepleton was informed that a vehicle matching Juans description of defendants vehicle had been found parked on defendants street in Desert Hot Springs. As Officer Steepleton drove to Desert Hot Springs, he was further informed that Desert Hot Springs police had detained defendant and had observed a gun in "plain view" on the rear floorboard of her car. Upon his arrival, Officer Steepleton unlocked the door of defendants car and retrieved the gun, a nine-millimeter semiautomatic. The gun was registered to defendant. The gun was admitted into evidence.
Officer Steepleton did not search defendants house or car for the written statement Juan said he had signed purporting to give custody of the children to defendant, and there was no evidence that any other officers attempted to locate the statement. The statement was not presented at trial. Officer Steepleton also did not look for or observe any cuts on defendant, and did not look for or observe any blood around the window of Juans apartment, dust for fingerprints, or inspect the apartment for evidence. Nor did he interview the children or any of Juans neighbors. Officer Steepleton explained that his "main priority" was locating defendant, because she was reportedly armed and wanted to commit "suicide by cop."
There were other apartments to the right and left of Juans apartment, and their front doors were around 10 feet from Juans front door. The apartments also shared common walls. None of Juans neighbors came outside, either when Juans front window was broken or any time thereafter.
B. Defense Evidence
The defense called D.T. and S.T. to testify before defendant testified in her own defense.
1. D.T.s Testimony
D.T. was 12 years old at the time of trial in May 2007. He was asleep on the night of June 1 and 2, 2006; he heard no yelling or glass breaking; and he did not see his mother. His father woke him and told him his mother had come in with a gun, pointed it at him, and wanted to take the children with her. His father told him to put his shoes and socks on, and he, his father, and sisters left the apartment. They jumped over a brick wall and ran to the 7-Eleven store. He acknowledged there were metal knives on top of the television in the living room, one of which was like a sword. His father had purchased the knives so the children could use them in karate once they had obtained black belts.
2. S.T.s Testimony
S.T. was eight years old at the time of trial. She testified that her sister J.T. woke her up on the night her mother came to the apartment, before they went to the 7-Eleven store. J.T. went into the living room and hugged her mother, while S.T. waited in the bedroom. The bedroom door was open and S.T. was able to look out.
3. Defendants Testimony
Defendant testified that, "thank God," her and Juans divorce had been finalized on November 9, 2006. At the time of trial in May 2007, Juan had full legal custody of the children and defendant was no longer allowed to visit the children at all. On June 1, 2006, defendant was not aware that Juan had just received a court order or notice in the mail confirming he had full custody of the children. Defendant had not received a copy of the June 1 order or notice.
Defendant testified that, as of June 1, 2006, Juan had temporary custody of the children pursuant to a temporary custody order issued on January 4, 2005. Pursuant to that order, defendant was allowed to speak to the children by phone for one hour every Tuesday and Thursday. She regularly spoke to the children after the January 4, 2005, order was issued. On June 1, she called Juans cell number around 6:00 p.m. and received a message that his phone was not accepting calls. She called the number again around 7:00 or 7:30 p.m., but received no answer. She probably attempted to call around seven times that evening.
Defendant then drove from Los Angeles to Palm Springs to try to see or talk to the children. She arrived at Juans apartment around 10:30 p.m. She knocked on the door and Juan let her in. She did not have her gun or any weapons with her. She had a "scratch," not a "cut," on her shoulder from cleaning her house. She asked Juan why he had not answered the phone, and he replied he had not been paying attention. She asked Juan whether she was going to be able to see the children on the following Saturday, and Juan replied, "yes." Juan was apologetic and said she could have the kids from Saturday to Monday.
After defendant was in the apartment around 10 minutes, J.T. entered the living room, was happy to see defendant, and hugged her. Defendant asked J.T. why she was up. J.T. said she was cold and grabbed some blankets from the ground next to the front window. J.T. then gave her mother a kiss, asked her mother whether she would see her on Saturday, and went back to bed. At this point, Juan was standing next to the television, and there were three "swords" on top of the television.
Juan picked up the largest "sword," slid it out of its "container" or sheath, and "smile[d] at [defendant] in a strange way." Defendant was holding a chair to defend herself. Juan "made a move" to strike her with the sword, but did not point it at her. Defendant said, "When he was pulling it [out of its sheath], I told him, dont—dont try it." Juan smiled, walked toward her, and said, "[L]ets try to work things out. [¶] . . . [¶] Children need both parents. Lets go back to court." Defendant replied that all she wanted to do was make sure she got to see the children on Saturday. Defendant then stood up and walked out of the apartment. As she was leaving, Juan told her "he [would] send [her] to hell" and slammed the door. After she left, defendant said to herself, "[H]ow worse could it get? I mean, hes taken my kids away."
Defendant was in the apartment for a total of around 20 minutes. She never broke any glass, pointed a gun at Juan, threatened to kill him, or prevented him from leaving. When asked why Juan would "make these things up," she explained, "When he left he told me I would always be his wife. I will never be with another man, just him. And he will do whatever it takes for me not to go with another one."
Defendant was employed by her "own company" as a security guard and carried a gun in the course of her work. Defendant said Juan knew she was a security guard because she informed him in March 2005 when the court ordered her to provide him with information regarding her employment. Juan also knew she carried a gun, because she had shown it to him in March 2005. She stored the gun under the passenger seat of her car and kept the magazines under the drivers seat.
C. Prosecution Rebuttal and Defense Surrebuttal
The People called Juan in rebuttal. Juan denied that defendant came to his apartment around 10:30 p.m., and reiterated that she came to the apartment around 1:00 a.m. He did not "pull a knife" off the television set and threaten her with it. In surrebuttal, defendant testified that Juan did not strike her with the sword; he only "moved" the sword to pull it out.
III. DISCUSSION
A. The Prosecutor Committed Doyle Error But the Error Was Harmless Beyond a Reasonable Doubt
Defendant first claims the prosecutor committed Doyle error in questioning her during cross-examination. We agree there was Doyle error but find the error harmless beyond a reasonable doubt.
1. Relevant Background
On cross-examination of defendant, the following exchange occurred:
"[PROSECUTOR]: On June 2nd, 2006, you were arrested, correct?
"[DEFENDANT]: Yes, maam.
"[PROSECUTOR]: And you never gave any of these statements to the officers on that day, correct?
"[DEFENSE COUNSEL]: Objection. Your Honor, relevance. This is a violation of Miranda issues.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
"THE COURT: Well, sustained.
"[PROSECUTOR]: [Defendant,] since that day this matter has been going on for about a year, correct?
"[DEFENDANT]: Yes, maam.
"[PROSECUTOR]: And you have never told anyone this story since then other than your attorney?
"[DEFENSE COUNSEL]: Objection, relevance, Your Honor.
"THE COURT: Overruled.
"[DEFENDANT]: I told the officer that he needed to read—he needed to read my Miranda laws. . . .
"[PROSECUTOR]: That wasnt the question, maam.
"[DEFENDANT]: I apologize.
"[PROSECUTOR]: Since June 2nd . . . . [¶] . . . [¶] . . . 2006, after you were arrested, have you told anybody else this story that you are telling in court?
"[DEFENDANT]: Nobody asked me any questions, maam.
"THE COURT: So thats a `no?
"[DEFENDANT]: Yes, sir." (Italics added.)
After defendant testified, defense counsel asked the court to direct the prosecutor not to mention, during her closing argument, that defendant did not tell her "story" to anyone following her arrest, other than her attorney. Defense counsel told the court, "its going to paint that picture in the jurors minds, why didnt my client [say] that to anybody else[.] [¶] Thats the point, when she has a constitutional right not to speak to anyone. And the prosecutor cant . . . focus on that issue." The trial court agreed it was Doyle error to comment upon a defendants invocation of his or her Miranda rights, but concluded that the prosecutor did not commit Doyle error because her question whether defendant told anyone her story was a general question and defendant was "the one that volunteered the Miranda."
During rebuttal closing argument, the prosecutor told the jury, "When she [defendant] took the stand, she was angry and she tried to throw as much out there as she possibly could. [¶] A story." Then, after criticizing defense counsels closing argument, pointing out consistencies in Juans and the childrens testimony and inconsistencies in defendants "story," the prosecutor told the jury, "This [defendants] story is ridiculous. It was imaginary, it was made up, and it was made up at the last second. It is unreasonable." (Italics added.)
2. Analysis/ Doyle Error
In a state criminal trial, the prosecutors use of a defendants post-Miranda silence to impeach the defendants trial testimony violates the defendants due process rights under the Fourteenth Amendment. (Doyle, supra, 426 U.S. at p. 619.) The Doyle court reasoned, "while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested persons silence to be used to impeach an explanation subsequently offered at trial." (Id. at p. 618, fn. omitted.)
In United States v. Hale (1975) 422 U.S. 171, the high court articulated the rationale underlying its later holding in Doyle when it observed: "Not only is evidence of silence at the time of arrest generally not very probative of a defendants credibility, but it also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendants previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest." (Id. at p. 180, fn. omitted.)
The People argue that here there is no Doyle error because "it is unclear whether [defendant] unequivocally invoked her right to silence upon her arrest." Not so. When the prosecutor asked defendant why she did not tell "anyone" other than her attorney the "story" she testified to at trial, defendant explained that she "told the officer that he needed to read . . . my Miranda laws." Thus, defendant invoked her right to remain silent at the time of her arrest. It makes no difference that the arresting officer did not read defendant her Miranda rights, including her right to remain silent, before defendant invoked that right.
A Doyle violation has two components: (1) the prosecution must make use of the defendants post-Miranda silence for impeachment purposes, either by questioning the defendant about that silence or referring to it in closing argument; and (2) the trial court must permit that use. (Greer v. Miller (1987) 483 U.S. 756, 761-764 (Greer ); People v. Evans (1994) 25 Cal.App.4th 358, 367-369.) Both components are present here—with regard to the prosecutors second question whether defendant told "anyone" other than her attorney the "story" she testified to at trial. The trial court allowed the second question over defense counsels relevance objection, which told the jury that the subject of the question was legitimate. (People v. Evans, supra, at pp. 368-369.) Both the prosecutor and the court then compounded the error when the trial court refused defense counsels request to direct the prosecutor not to refer to defendants post-Miranda silence to anyone during argument, and the prosecutor referred to that silence in rebuttal argument when she said defendants story was "made up at the last second."
The prosecutors immediately preceding question was directed to defendants failure to tell any police officers her story on the day of her arrest, but the trial court sustained defense counsels "Miranda issues" objection to that question, and, in argument, the prosecutor did not specifically refer to defendants silence to police officers. Thus, this question did not satisfy the second element of Greer; the trial court did not permit the prosecutor to impeach defendant with her silence to police officers, and by implication did not allow the prosecutor to refer to that silence in argument. (Greer, supra, 483 U.S. at p. 764; People v. Evans, supra, 25 Cal.App.4th at pp. 367-369.)
In refusing defense counsels requested instruction to the prosecutor, the trial court indicated it believed the prosecutors "anyone" question was permissible because it was a general question and was not specifically directed to defendants silence to law enforcement officers. But the rule of Doyle encompasses prosecutorial questions or comments concerning a defendants post-Miranda silence—not only to police officers, but to anyone else under circumstances indicating that silence was motivated by the defendants desire to rely on his or her right to remain silent, right to counsel, or both. (People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520-1521 [noting that Doyle error attaches to a prosecutors use of a defendants post-Miranda failure to talk to anyone, provided that the silence "results primarily from [the defendants] conscious exercise of [his or her] constitutional rights"].)
Indeed, although Doyle involved comments concerning the defendants failure to tell a police officer the version of events the defendant later testified to at trial (Doyle, supra, 426 U.S. at pp. 613-614), our state Supreme Court has recognized that "the spirit if not the letter" of Doyle may be violated when the prosecutor comments on or questions the defendant concerning his postMiranda, pretrial failure to tell his exculpatory story to others, including, but not limited to, the defendants family and friends. (People v. Earp (1999) 20 Cal.4th 826, 856-857 (Earp).) And well before Earp was decided in 1999, appellate courts of this state had recognized that the rule of Doyle is not limited to silence to law enforcement officers. (People v. Farris (1977) 66 Cal.App.3d. 376, 389-390 [general questions concerning defendants pretrial silence, including why defendant failed to tell "no one" the story he testified to at trial, constituted Doyle error]; People v. Galloway (1979) 100 Cal.App.3d 551, 557-558 and federal cases cited [failure to tell "anyone" or "somebody" constituted Doyle error]; People v. Eshelman, supra, 225 Cal.App.3d at pp. 1520-1521 [Doyle applies to silence to a private citizen, provided that silence is an assertion of the defendants rights to silence or counsel].)
As the Doyle court itself observed, "Silence in the wake of [Miranda] warnings may be nothing more than the arrestees exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested." (Doyle, supra, 426 U.S. at p. 617, fn. omitted.) Thus, when a defendant, following the invocation of his Miranda rights and before trial, fails to tell anyone the story he later testifies to at trial, it may be that the defendant is relying upon and wishes to preserve his Miranda right to remain silent and not to have any statements he would otherwise make be used against him at trial, or his right to counsel, or both. (People v. Eshelman, supra, 225 Cal.App.3d at p. 1520.) This certainly appears to be why defendant remained silent following her arrest and invocation of her Miranda rights. As discussed, when defendant was asked whether she told anyone other than her attorney the story she testified to at trial, she explained that she told the arresting officers they needed to read her her "Miranda laws."
When the prosecutor narrowed the question to apply to persons other than police officers and defendants attorney, defendant responded that she had told no one else her story because no one else had asked her any questions about it. This response does not necessarily indicate that defendant would have told her story to anyone else had she been asked about it.
3. Analysis/Harmless Error
Although the prosecutor committed Doyle error in asking defendant whether she told her story to "anyone" before trial other than her attorney, and compounded that error by referring—albeit obliquely—to defendants post-Miranda silence during argument, we find the errors harmless beyond a reasonable doubt. It is not reasonably possible that the errors could have affected the jurys verdicts, principally because Juans testimony concerning the events of June 1 and 2, 2006, was corroborated by all of the other witnesses except defendant, and defendants story or explanation concerning why she was in Juans apartment that evening was implausible in light of all of the other evidence. (Chapman v. California (1967) 386 U.S. 18, 24; Earp, supra, 20 Cal.4th at pp. 857-858.)
Defendants "story" was that she went to Juans apartment around 10:30 p.m. on the night of June 1 because she had been unable to reach the children by phone earlier that evening. She claimed she was in the apartment for around 20 minutes, not three hours as Juan had testified. She spoke to Juan about visiting the children, spoke to J.T. when J.T. entered the room, then left the apartment. She did not have a gun, did not threaten Juan in any way, and did not prevent him from leaving. She did not break the front window of the apartment. By itself, defendants story constituted a plausible defense to the charges, but her story is not plausible in light of the other witnesss testimony, particularly Juans and J.T.s corroborating testimony concerning the broken front window.
According to Juan, defendant broke the front window of the apartment and sustained a cut on her exposed arm in the process. J.T. testified that she heard the sound of glass breaking, went back to sleep, and later woke up "fully" when she heard voices. At that point, she peeked out through the partially-open bedroom door, saw her parents in the living room, and went into the living room. She picked up a blanket near the front window and at that point saw a piece of glass on the floor. She also saw that her mother had a cut on her arm and there was dried blood on it.
Defendant said she sustained the cut while cleaning her house earlier that week, but that does not explain J.T.s and Juans corroborating accounts of the broken front window. In addition, Juan could not have broken the window after defendant left the apartment and before he and the children went to the 7-Eleven store, because J.T. unequivocally heard the window break and saw the broken glass before defendant left the apartment. It is also implausible that Juan would have broken the front window before defendant came to the apartment, particularly when he did not know she was coming. His cell phone was not accepting calls that day, and that was the reason defendant claimed she came to the apartment unannounced.
In sum, the prosecutors Doyle error, including her "anyone" question and oblique reference in rebuttal argument to defendants post-Miranda silence, could not have affected the verdicts. The evidence of defendants guilt was clearly presented through the testimony of Juan, his testimony was corroborated in significant respects by J.T., and the testimony of all of the witnesses except defendant was remarkably consistent. Moreover, defendants contrary "story" concerning what happened during the evening of June 1 and 2, 2006, was implausible in light of the testimony of all of the other evidence.
Furthermore, the prosecutors questions and argument that defendants story was "made up at the last second" were but fleeting and indirect references to defendants post-Miranda silence, and could not have affected the jurys verdicts in light of the evidence of defendants guilt and the implausibility of her defense in light of the other witnesses testimony and evidence. (People v. Hinton (2006) 37 Cal.4th 839, 867-868 [fleeting reference to defendants post-Miranda silence harmless beyond a reasonable doubt in light of defendants inconsistent statements and other evidence of his guilt].) Indeed, the prosecutor did not specifically refer to defendants post-Miranda silence at any time during her initial closing or rebuttal arguments. And the argument that defendants story was "made up at the last second" was overwhelmingly based on the inconsistencies in defendants testimony, significant consistencies in the testimony of Juan, the children, and Officer Steepleton, and the consequent illogic or implausibility of defendants story or defense, rather than on defendants post-Miranda silence. The prosecutor did not urge the jury to find defendant guilty because she did not tell her exculpatory story to anyone other than her attorney before trial. Instead, she urged the jury to reject defendants story or defense because it was implausible in light of all of the evidence presented.
B. Defendants Sentences on Counts 2 Through 4 Must Be Stayed Under Section 654
Defendant contends the concurrent terms the court imposed on counts 2 through 4 for, respectively, her false imprisonment, criminal threats, and assault with a firearm convictions, should have been stayed under section 654 based on the greater four-year term the court imposed for her burglary conviction in count 1. She argues the evidence indisputably showed that she harbored the same intent and objective in committing all four crimes, that is, "to make her husband relinquish custody of their three children." We agree with defendant. The concurrent terms on counts 2 through 4 should have been stayed because the undisputed facts show that defendant harbored a single intent and objective in committing all four crimes.
1. Section 654
Section 654, subdivision (a) provides, in pertinent part, 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. . . ."
"Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]" (People v. Hester (2000) 22 Cal.4th 290, 294.) "The purpose of section 654 is to prevent multiple punishment for a single act or omission [or indivisible course of conduct], even though that act or omission [or indivisible course of conduct] violates more than one statute and thus constitutes more than one crime. . . ." (People v. Liu (1996) 46 Cal.App.4th 1119, 1135; People v. Harrison (1989) 48 Cal.3d 321, 335.)
Section 654 is intended to ensure that a defendants punishment is "commensurate with his culpability." (People v. Perez (1979) 23 Cal.3d 545, 551.)
"It is defendants intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible." (People v. Harrison, supra, 48 Cal.3d at p. 335.) If the defendants crimes "were merely incidental to, or were the means of accomplishing or facilitating one objective, [the] defendant may be found to have harbored a single intent and therefore may be punished only once." (Ibid., citing Neal v. State of California (1960) 55 Cal.2d 11, 19.) Multiple punishment is proper, however, where the defendant entertained multiple criminal objectives which were independent of each other. (People v. Harrison, supra, at p. 335, citing People v. Beamon (1973) 8 Cal.3d 625, 639.)
Although the determination of whether a defendant harbored a single intent and objective is generally a factual question, the application of section 654 to undisputed facts is a question of law. (People v. Harrison, supra, 48 Cal.3d at p. 335, citing People v. Perez, supra, 23 Cal.3d at p. 552, fn. 5.) An implied finding that the crimes were divisible must be upheld on appeal if substantial evidence supports it. (People v. Blake (1998) 68 Cal.App.4th 509, 512.) When, however, the relevant facts are undisputed, the application of section 654 is a question of law which we review de novo. (Neal v. State of California, supra, 55 Cal.2d at p. 17.)
2. Analysis
In imposing sentence, the court selected burglary as the principal count and imposed the midterm of four years on that count. Regarding counts 2 through 4, the court observed that concurrent terms were appropriate "[s]ince the false imprisonment, the terrorist threats, and the [section] 245[, subdivision] (a)(2) with a gun somewhat arise out of the same incident." The court was not asked to address and did not address whether the terms imposed on counts 2 through 4 should have been stayed under section 654 rather than imposed concurrently.
Nevertheless, the undisputed evidence showed that defendant harbored a single intent and objective in committing all four crimes, specifically, "to make her husband relinquish custody of their three children." When, as here, a defendant commits a burglary together with one or more target crimes and harbors a single intent and objective in committing all of those crimes, the defendant may be punished for the crime carrying the longest term of imprisonment, and the lesser terms for the less serious offenses must be stayed under section 654. (People v. Diaz (1967) 66 Cal.2d 801, 806-807; People v. Sipult (1965) 234 Cal.App.2d 862, 870.) Thus here, the terms imposed on counts 2 through 4 should have been stayed rather than ordered to run concurrently.
IV. DISPOSITION
The judgment is amended to stay the terms imposed on counts 2 through 4. The matter is remanded to the trial court with directions to amend defendants abstract of judgment to reflect that the terms imposed on counts 2 through 4 have been stayed under section 654, and to forward an amended copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur:
McKinster, Acting P.J.
Gaut, J.