Opinion
B225383
10-14-2011
THE PEOPLE, Plaintiff and Respondent, v. YUSAR CARR, Defendant and Appellant.
Robert Bryzman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA062132)
APPEAL from a judgment of the Superior Court of Los Angeles County. Susan M. Speer, Judge. Affirmed in part and reversed in part.
Robert Bryzman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Yusar Carr guilty of four offenses arising out of a February 20, 2009 altercation with Cortney Dunlap, his sometime girlfriend and the mother of his young daughter: misdemeanor vandalism (count 3) in violation of Penal Code section 594, subdivision (a); assault by means of force likely to produce great bodily injury (count 4) in violation of section 245, subdivision (a)(1); kidnapping (count 5) in violation of section 207, subdivision (a); and making criminal threats (count 6) in violation of section 422. He was also convicted of three offenses arising out of his arrest on May 24, 2009: evading an officer (count 7) in violation of Vehicle Code section 2800.2, subdivision (a); having a concealed weapon in his vehicle (count 8) in violation of section 12025, subdivision (a)(1), a misdemeanor; and carrying a loaded firearm in his vehicle (count 9) in violation of section 12031, subdivision (a)(1), a misdemeanor.
All further statutory citations are to the Penal Code unless indicated otherwise.
The jury found defendant not guilty of assaulting Dunlap with his vehicle as charged in count 1. The trial court declared a mistrial on count 2, assaulting Dunlap with a semiautomatic firearm, and on the special weapon use allegation in count 5, due to jury deadlock. On the prosecution's motion, the court dismissed count 2 and the special allegations as to counts 2 and 5.
The trial court selected the kidnapping as the base count and imposed the five-year middle term. It imposed a consecutive term of one year for the assault by means of force likely to produce bodily injury, along with eight months for both the criminal threats and evading an officer — for a total of seven years four months for the felonies. One year concurrent terms were imposed for the misdemeanor concealed weapon and vandalism, and a consecutive one year sentence was imposed for the concealed weapon in a vehicle misdemeanor.
As we explain in the context of defendant's seventh appellate claim, the abstract of judgment, which pertains solely to felony sentencing, properly did not refer to the misdemeanor sentences, but inaccurately stated the total prison time imposed, excluding any county jail term, was eight years four months by implicitly including the one year consecutive misdemeanor sentence.
In his timely appeal, defendant contends: (1) the trial court had a sua sponte duty to instruct the jury that it must unanimously find the same act was the predicate for the assault by means of force likely to produce great bodily injury; (2) there was constitutionally insufficient evidence to support the conviction for assault by means of force likely to produce great bodily injury; (3) the trial court had a sua sponte duty to instruct on simple assault as a lesser included offense of assault by means of force likely to produce great bodily injury; (4) section 654's proscription against multiple punishment requires that counts 3 and 4, for vandalism and aggravated assault, be stayed because both were committed to facilitate count 5, the kidnapping; (5) the trial court imposed an unauthorized sentence by ordering the one year term for misdemeanor possession of a concealed weapon in a vehicle could be served in any penal institution, rather than county jail; and (6) imposition of that same one year term violated defendant's state and federal constitutional rights to equal protection.
We reverse in part. Pursuant to defendant's third appellate contention, his conviction of assault with force likely to produce great bodily injury is reversed for failure to instruct on the lesser included offense of simple assault. With regard to his fifth appellate contention, the trial court is ordered to make a separate commitment order that the sentence on the section 12025, subdivision (a) conviction is to be served in county jail. In all other respects, the judgment is affirmed.
STATEMENT OF FACTS
Dunlap met defendant in 2006. They had a daughter, who was born in September 2007. From 2008 to 2009, they broke up and reunited various times after incidents of domestic violence. In 2008, when Dunlap attempted to drop off her nine-month-old daughter off at defendant's house, he angrily refused to take the child, and he slapped Dunlap's face and pulled her hair. Her car windows were smashed in December 2008, while the car was parked in her driveway, shortly after defendant threatened her on the telephone and sent her a text message with a death threat. In January 2009, Dunlap applied for a restraining order against defendant, which was issued on January 5, 2009.
In February 2009, Dunlap worked at a supermarket in Granada Hills. She lived in Pacoima with her mother, Nicole Lee, and daughter. Defendant lived in Van Nuys on Cohasset Street with his father. On February 20, 2009, Dunlap got off work at 11:00 p.m. and drove her Honda Civic toward the 118 freeway. When she drove onto the Havenhurst onramp, she noticed a sports utility vehicle driven by defendant approaching from behind at a high rate of speed. She swerved to avoid the vehicle and parked. Defendant parked the SUV approximately 12 feet in front of Dunlap's car.
Lee testified about another incident, which Dunlap had claimed not to remember. In June 2008, defendant was driving with Dunlap and her daughter as passengers. He refused to let Dunlap out with the baby and threatened to kill her and himself. When Dunlap agreed to leave the baby in the car, he let Dunlap out and drove away. Worried about her daughter, Dunlap and Lee drove to his house. While Dunlap and defendant argued about whether he would release the baby, Lee took her from the bedroom, where she was lying on defendant's bed next to a sword.
Defendant broke Dunlap's driver side window and told her to get out. When she refused, defendant reached through the broken window and tried to remove the ignition key. After that, defendant hit her in the jaw. At trial, she did not recall whether he struck her with his fist or open hand or whether it was painful. As they struggled over the car keys, defendant bit Dunlap's right arm. She agreed to leave her car and get into his SUV. He drove, and she sat next to him in the front passenger seat. Defendant was angry and had his handgun on his lap. Dunlap tried to calm him.
Defendant drove to the 405 and 101 freeways. He apologized for hitting her and said he wanted "to work out" their relationship. At one point, he put the gun to his head and said he wanted to kill himself. Defendant eventually calmed down and drove Dunlap to his Van Nuys residence, where they spoke with defendant's father. Sometime between 2:00 and 3:00 a.m., defendant drove her and his father to the onramp to retrieve Dunlap's car, but the car was gone. At trial, Dunlap denied that defendant insisted they return to his house, testifying that it was her decision to go there rather than to her house. They slept that night at defendant's house in separate rooms.
Defendant drove Dunlap home in the morning. She had no telephone, so she went to her babysitter's house and called her mother, telling her that defendant had "kidnapped her at gunpoint." Lee received the call at approximately 10:00 a.m., while she was at the hairdresser's shop with her granddaughter. Lee had been calling Dunlap's cell phone repeatedly when her daughter did not return home after work, but there had been no answer. Dunlap returned to her house, where she met her mother, who called the police. Officers arrived and photographed her bite wound as well as her jaw, which was swollen where defendant struck her.
Lee recalled that her daughter was shaking and crying. Dunlap told Lee that defendant had driven her off the road, broke her car window with a gun, and "snatched her out of the car." Defendant had threatened to kill Dunlap while driving.
In the early morning hours of February 21, Officer Jared Wallace of the California Highway Patrol found Dunlap's abandoned Honda. It was in the gore point, partially blocking the freeway onramp. The driver side window was broken. Officer Wallace found numerous items in the car, including a cell phone and purse.
At 10:00 a.m., Officer Thomas Case responded to Dunlap and Lee's Pacoima residence, where he interviewed Dunlap. She was frightened and upset. Dunlap described the incident in which defendant's SUV forced her off the road and blocked her way. Defendant smashed her driver side window and punched her through the window. He forced her out of the Honda and into his SUV, threatening that he planned to kill her and then himself.
After interviewing Dunlap, Officer Case and his partner went to defendant's Cohasset Street residence. Defendant's father answered the door. The officers asked for defendant, but he refused to let them enter. Officer Thomas Musser and his partner saw a male matching defendant's description walking on a wall behind the house. The male jumped over the fence and ran north toward some railroad tracks, where the officers lost sight of him. The officers searched for an hour, but did not find him.
A few days later, on February 24, Detective Rocky Sherwood interviewed Dunlap concerning the incident. Dunlap said that defendant called her that day. She told him that she was working that night and she did not want to talk to him, reminding him that the restraining order was in effect. Dunlap told the detective that after defendant parked in front of her, he demanded she leave her car. Defendant was holding a gun, which he used to break the driver side window. While driving her in the SUV, defendant threatened to kill her and himself. She took the threats seriously. Dunlap stayed overnight at defendant's house because she was afraid he would kill her unless she did.
On May 24, 2009, Officer Eric Hammerschmitt was on patrol near Laurel Canyon, when he saw a black Yukon, which had been reported stolen. He followed it as it drove onto the 101 Freeway. As they approached Reseda Boulevard, the officer activated his lights and siren. The Yukon began to pull off the freeway, onto the Reseda exit, but accelerated down the off ramp and made a hard right turn onto Reseda. There were two passengers and a driver visible inside. The Yukon made another hard right turn and sped down a narrow residential street, causing pedestrians to scatter, and ran a stop sign. The Yukon turned onto Etiwanda, speeding and driving into the oncoming traffic lane to pass other cars. It ran through another stop sign, turned onto Oxnard, ran a red light, and crashed into the curb on Calvin.
When Officer Hammerschmitt approached the Yukon, two males were standing next to the vehicle. Defendant had been stopped by other officers a block away. Officer Charles Wright searched the SUV and found a black beanie between the driver seat and center console. Inside was a semiautomatic handgun.
Officer Dontae Phillips and his partner were in one of the patrol cars involved in the pursuit of defendant's SUV. They joined the chase when defendant was on the 101 freeway near Laurel Canyon. Defendant was arrested and taken to the North Hollywood police station, where he received his Miranda warnings, which he waived. Defendant explained that when the officers attempted to pull him over, he was under the influence of marijuana and knew there was a gun in the vehicle. He said his father, who had recently died, had given him the weapon for protection. The handgun — a loaded nine-millimeter semiautomatic — was found on the floorboard of the driver's seat inside a beanie. Dunlap identified the semiautomatic handgun found in the SUV as the one defendant used to kidnap her.
Miranda v. Arizona (1966) 384 U.S. 436.
Following defendant's arrest, Dunlap and defendant became engaged to be married.
DISCUSSION
Unanimity Instruction
Defendant contends the trial court prejudicially erred in failing to sua sponte instruct the jury that it must unanimously find the same act was the predicate for the assault by means of force likely to produce great bodily injury alleged in count 4. More specifically, defendant argues the court was required to instruct that the predicate act for count 4 was defendant's striking Dunlap with his fist — and not the assault with his SUV or gun. Under well established precedent, however, no such instruction was required in light of the prosecution's unambiguous election to proceed solely on the allegation that defendant struck Dunlap with his hand. Additionally, as the Attorney General points out, there was no reasonable basis or likelihood of juror confusion on that point because the jury was instructed that defendant's use of the SUV was the basis for the assault alleged in count 1 and his use of the gun was the basis for the assault alleged in count 2.
"In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) The unanimity requirement "'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' (People v. Sutherland (1993) 17 Cal.App.4th 602, 612.)" (Russo, supra, at p. 1132.) In practice, this means "the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' . . ." (Id. at p. 1135, quoting People v. Perez (1993) 21 Cal.App.4th 214, 223.)
The trial court has a sua sponte duty to give a unanimity instruction when no election has been made by the prosecutor. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 (Melhado) ["When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act."].)
Here, the prosecutor made an unambiguous election to proceed solely on the punch to Dunlap's jaw as the basis for count 4, explaining that the charge was based on "the fact when [Dunlap] testified how [defendant] punched her when he wanted her to get out of the car, he punched her in the jaw and she had swelling in the jaw area." At no point did the prosecutor make a contrary statement or suggest that the other alleged assaultive acts could be considered in conjunction with count 4. The defense argument confirmed that understanding. Trial counsel stated with regard to count 4: "[T]hat's the one where . . . my client's alleged to have used the fist. You've heard the evidence on that." Later, counsel reiterated that the count was predicated on "the assault with a fist."
Moreover, as we have noted, the jury instructions carefully distinguished between the other assaultive crimes in terms of the instrumentality defendant used. Count 1 was defined in terms of "assault with a deadly weapon, to wit, vehicle," and the jury was instructed that count 2 required proof that defendant "did an act with a semiautomatic firearm." Because no reasonable juror could have been in doubt as to the prosecution's election as to count 4, the trial court was not required to instruct on unanimity. (See Melhado, supra, 60 Cal.App.4th at p. 1539.)
For these reasons, the failure to instruct on unanimity would have been harmless under the circumstances, whether assessed under the standard for constitutional violations or state law error. We therefore need not decide which standard applies. (Compare People v. Thompson (1995) 36 Cal.App.4th 843, 853 ["Failure to give a unanimity instruction is governed by the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24), which requires the error to be harmless beyond a reasonable doubt."] with People v. Vargas (2001) 91 Cal.App.4th 506, 562 [People v. Watson (1956) 46 Cal.2d 818 (Watson) is the applicable standard] and People v. Frederick (2006) 142 Cal.App.4th 400, 419 [same].) In light of the prosecutor's unambiguous election and the clear instructions that attributed defendant's other assaultive acts to separate offenses, the jurors would have had no reason to confuse or conflate his use of his fist, vehicle, and gun in reaching the verdict on count 4.
Sufficiency of Evidence
In a related claim, defendant contends there was constitutionally insufficient evidence to support the conviction in count 4, asserting there was no solid and reliable evidence that he struck Dunlap with enough force to cause a likelihood of great bodily injury. The contention fails because the prosecution case presented ample evidence to support a reasonable inference that defendant punched Dunlap's face with force likely to cause significant or substantial injury, rather than insignificant, trivial, or moderate harm.
Applying the standard for federal constitutional error, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) Accordingly, we review the record "in the light most favorable to the judgment below to determine whether it discloses substantial evidence" supporting each element of the crime. (People v. Johnson (1980) 26 Cal.3d 557, 562.) "[S]ubstantial evidence" is "evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Id. at p. 578; People v. Abilez (2007) 41 Cal.4th 472, 504.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Majors (2004) 33 Cal.4th 321, 331 [the reviewing court does not resolve evidentiary conflicts, but views the evidence in a light most favorable to the People, and presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence].)
"Section 245, subdivision (a)(1), punishes assaults committed by the following means: 'with a deadly weapon or instrument other than a firearm,' or by 'any means of force likely to produce great bodily injury.' One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. (See People v. Wingo (1975) 14 Cal.3d 169, 176.) That the use of hands or fists alone may support a conviction of assault 'by means of force likely to produce great bodily injury' is well established [citations] . . . ." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028, fn. omitted.) "Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate. (See People v. Covino (1980) 100 Cal.App.3d 660, 667.)" (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066 (Armstrong).) "Numerous cases have held that whether the force used by the defendant was likely to produce great bodily injury is a question for the trier of fact to decide." (People v. Sargent (1999) 19 Cal.4th 1206, 1221 (Sargent).)
Here, the evidence included Dunlap's testimony that defendant hit her in the jaw. When the officers arrived, the officers photographed her jaw, which was swollen where defendant struck her. The photograph was admitted for the jury's consideration. The officers also testified that she told them after the incident that defendant had punched or hit her in the face. Defendant emphasizes the victim's testimony that she did not recall whether defendant struck her with his fist or open hand or whether it was painful. However, the jury was entitled to discount the witness's efforts to minimize defendant's conduct, particularly in light of her admission that she was now engaged to be married to defendant.
The relevant precedent supports the conclusion that punching a person with enough force to leave visible swelling on the victim's face permits the reasonable inference of a likelihood of producing great bodily injury. As the Attorney General points out in People v. Fierro (1991) 1 Cal.4th 173, our Supreme Court held that striking the victim on the forehead without warning and with great force — whether with a telephone receiver or with the hand or fist alone — would support an inference of force likely to produce great bodily injury. (Id. at p. 251 & fn. 27; see also, e.g., Armstrong, supra, 8 Cal.App.4th at p. 1066 [sufficient evidence found where defendant grabbed both sides of victim's face, pinched both sides of her mouth, and shoved his hand down her throat so she would not scream].)
Defendant's reliance on People v. Duke (1985) 174 Cal.App.3d 296 is misplaced. That decision involved a situation in which the defendant grabbed the victim momentarily and the force he used did not place her in any danger. Although the defendant placed his victim in a headlock, he "did not cut off her breathing. She could still scream, and she did get away." (Id. at p. 302.) The Duke court explained that "[t]he victim did not describe an attempt to choke or strangle her." (Ibid.) Accordingly, "a reasonable jury could not find beyond a reasonable doubt that the headlock used on [the victim] constituted force likely to produce great bodily injury." (Id. at p. 303.)
In contrast, by the forceful striking of the victim's head with his fist, defendant committed an act that raised the reasonable likelihood of causing broken bones, concussion, or lacerations—none of which must be dismissed as insignificant, trivial, or moderate. (See Armstrong, supra, 8 Cal.App.4th at p. 1066.) "'"If there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding."' [Citations.]" (People v. Escobar (1992) 3 Cal.4th 740, 750, fn. omitted.)
Lesser Related Offense Instruction
Defendant's third contention argues the trial court prejudicially failed to instruct sua sponte that simple assault under section 240 is a lesser included offense of assault by means of force likely to produce great bodily injury. We agree.
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.)
The defense did not request an instruction on simple assault. However, "'[i]n criminal cases, even absent a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. (People v. Breverman [(1998)] 19 Cal.4th [142,] 154 [(Breverman)].) This obligation includes giving instructions on lesser included offenses when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. (Ibid.) . . .' [Citation.]" (People v. Moye (2009) 47 Cal.4th 537, 548-549 (Moye).) Simple assault is a lesser included offense of assault by means of force likely to produce great bodily injury. (People v. Berry (1976) 18 Cal.3d 509, 518-519.) "'On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense.' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 705.)
In this case, the prosecution evidence showed a single blow to the head that did not actually cause serious injury — although, as we have explained, it was the kind of act that reasonably could have done so. On the other hand, the victim testified that defendant's conduct might have been no more than a relatively painless open-handed slap. Our Supreme Court noted that "'where the blows are serious, but still leave a question of fact as to the character of the force used, the defendant is entitled to an instruction on the included offense of simple assault.'" (Sargent, supra, 19 Cal.4th at p. 1222, quoting 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against the Person, § 419, p. 481; accord, People v. Yancy (1959) 171 Cal.App.2d 371, 376 ["While the evidence shows that the victim received serious injuries and the jury could and did find that appellant was guilty of the offense charged, yet the question of whether his acts and conduct amounted to simple assault should have been submitted to the jury for its consideration."]; People v. Rupert (1971) 20 Cal.App.3d 961, 969.)
We assess the trial error for prejudice under the Watson test (Watson, supra, 46 Cal.2d at p. 836), "made applicable to instructional errors of this sort in California trials by Breverman, supra, 19 Cal.4th at pages 177-178." (Moye, supra, 47 Cal.4th at p. 555.) Under that standard, the failure to instruct on a lesser included offense will be deemed harmless if "it is not reasonably probable defendant would have obtained a more favorable outcome had the jury been so instructed." (Id. at p. 556.) Review under Watson "'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result. . . .' [Citation.]" (Ibid.)
As our summary of the evidence demonstrates, this was not a case in which the single blow was so inherently dangerous that acceptance of the prosecution case could only support an aggravated assault. Rather, the evidence as to the force used was ambivalent. Indeed, Dunlap minimized the nature and extent of defendant's actions and her injury. The jury was entitled to believe her and find simple assault, had that option been made available. Nor was this a case in which the failure to instruct was nonprejudicial in light of the proffered defense, such that belief in the defendant's version would have required an acquittal. Defendant presented no evidence of an affirmative defense. Nor did he dispute the evidence that he struck Dunlap. (Cf. People v. McDaniel (2008) 159 Cal.App.4th 736, 749 ["If, as the jury implicitly here found, defendant did not act in self-defense, then the undisputed evidence introduced at defendant's trial showed no less than an assault with force likely to produce great bodily injury."].) The conviction for assault with force likely to produce great bodily injury must therefore be reversed.
It does not appear that the proscription against subjecting a criminal defendant to double jeopardy would preclude the People from retrying defendant for that offense. "'The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.'" (People v. Costa (1991) 1 Cal.App.4th 1201, 1208, quoting Burks v. United States (1978) 437 U.S. 1, 11 (Burks).) However, "the Double Jeopardy Clause imposes no limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed because of the insufficiency of the evidence." (Oregon v. Kennedy (1982) 456 U.S. 667, 676, fn. 6; In re Martin (1987) 44 Cal.3d 1, 53.) That is, "reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. [Citation.]" (Burks, supra, at pp. 15-16.)
Multiple Punishment
Defendant contends section 654's proscription of multiple punishment requires that counts 3 and 4 (vandalism and assault by means of force likely to cause great bodily injury) be stayed because both were committed to facilitate count 5, the kidnapping. The contention fails, however, because the evidence supported the determination that the vandalism and assault were not merely part of the same indivisible course of conduct.
Defendant was sentenced to a total felony term of seven years four months. The kidnapping conviction was the base count. A one year concurrent term was imposed for the vandalism and a one year concurrent term was imposed for the aggravated assault. At the sentencing hearing, the trial court found "[t]he crimes and their objectives in this case were predominantly independent of each other. The crimes were committed at different times and places and there are no factors in mitigation."
Section 654 provides in pertinent 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." "The test for determining whether section 654 prohibits multiple punishment has long been established: 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' (Neal v. State of California [ (1960) ] 55 Cal.2d [11], 19.)" (People v. Britt (2004) 32 Cal.4th 944, 951-952 (Britt).) "'The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.] The factual finding that there was more than one objective must be supported by substantial evidence. [Citation.]' (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)" (People v. Hairston (2009) 174 Cal.App.4th 231, 240 (Hairston).)
The mere circumstance that the various criminal acts were committed within a short period of time does not mandate application of the section 654 bar. When "the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.)' (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)" (Hairston, supra, 174 Cal.App.4th at p. 240; see also Britt, supra, 32 Cal.4th at p. 952 ["cases have sometimes found separate objectives when the objectives were either (1) consecutive even if similar or (2) different even if simultaneous. In those cases, multiple punishment was permitted."], citing People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.)
Substantial evidence supports the trial court's finding. Defendant's argument as to the existence of an indivisible transaction encompassing the vandalism, aggravated assault, and kidnapping is based on the assumption that defendant intercepted Dunlap's car on the onramp with the sole intent of kidnapping her. We agree with the Attorney General, however, that the record supported findings that defendant formed separate and escalating criminal intents as the incident unfolded. The trial court was not required to find that defendant stopped Dunlap only to kidnap her. Rather, that decision could have been made after committing the vandalism and assault. Dunlap testified that defendant first broke Dunlap's driver side window and told her to get out. When she refused, defendant reached through the broken window and tried to remove the ignition key. After that, defendant hit her in the jaw while she was sitting in the car seat and before he forced her into his SUV.
The trial court could reasonably find defendant broke the window to scare and intimidate Dunlap, pursuant to his history of domestic violence, which included car vandalism. Similarly, his decision to punch Dunlap could be deemed a gratuitous act of violence, unnecessary to accomplishing the kidnapping, regardless of whether defendant formed the latter intent before or afterward. "[G]ratuitous violence against a helpless and unresisting victim . . . has traditionally been viewed as not 'incidental' to robbery for purposes of . . . section 654." (People v. Nguyen (1988) 204 Cal.App.3d 181, 190.) "[A]t some point the means to achieve an objective may become so extreme they can no longer be termed 'incidental' and must be considered to express a different and a more sinister goal than mere successful commission of the original crime." (Id. at p. 191.)
Defendant's reliance on cases such as People v. Chacon (1995) 37 Cal.App.4th 52, 65-66 (Chacon) is unavailing. There, the defendants were convicted of committing two violent assaults on a California Youth Authority librarian during an escape attempt: "The evidence was uncontroverted that Lopez held a shank to Goldman's neck and choked her unconscious. Chacon ran up to Goldman and stabbed her in the stomach. . . . The acts of violence upon her, while atrocious, were committed to get the attention of Lieutenant Barrett so that he would supply the [getaway vehicle]. The aggravated kidnap was ongoing." (Id. at p. 66.) Accordingly, one of the two sentences for assault had to be stayed. Here, in contrast, it was reasonable to infer that the assault and vandalism were committed before the intent to kidnap had been formed.
Because the trial court's finding of separate objectives was supported by substantial evidence, we conclude it was permissible to impose separate sentences for counts 3, 4, and 5. (See People v. Solis (2001) 90 Cal.App.4th 1002, 1022 [crimes of making a criminal threat and arson were divisible under § 654 because the defendant had the distinct objectives of frightening the victim with the criminal threat and destroying property in the arson]; People v. Nichols (1994) 29 Cal.App.4th 1651, 1656-1658 [separate punishments for both kidnapping and threatening to kill the victim if he "'open[ed] [his] mouth'" was permissible under section 654 because the defendant had separate objectives to (1) hijack a truck by kidnapping and robbing the victim and (2) avoid detection and conviction by dissuading and intimidating the victim].)
Misdemeanor Sentencing
First, defendant contends the trial court imposed an unauthorized sentence by ordering that he serve his one year consecutive term for the misdemeanor offense of having a concealed weapon in a vehicle (§ 12025, subd. (a)(1)) "in any institution," rather than in county jail. We agree that the one year misdemeanor commitment must be served in jail. Therefore, to the extent the sentencing order permits prison incarceration, it must be modified.
The trial court imposed a state prison sentence of seven years four months for the felony convictions. With regard to the misdemeanor concealed weapon and vandalism convictions, the court imposed one-year concurrent terms. It further ordered that those concurrent terms could be served "in any institution."
In imposing the consecutive sentence for the section 12025 misdemeanor conviction (count 8), the trial court stated: "[D]efendant is sentenced to one year in the county jail, it may be served in any penal institution . . . ." The minute order states that the sentence on count 8 is one year in county jail to run consecutive to count 5, to be served "in any penal institution."
The trial court initially characterized the sentence as being concurrent with the base count, but clarified that it was to be "consecutive."
As defendant points out, section 12025 specifies that the unenhanced misdemeanor offense is punishable "by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine." (§ 12025, subd. (b)(7).) More fundamentally, as a misdemeanor, incarceration in state prison is unavailable. One of the distinguishing features of a felony is that it "is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions." (§ 17.) "Whether a crime is a felony or a lesser offense is often dependent upon the type of punishment that is statutorily mandated. As Witkin explains, 'If the statute does not characterize the crime as either a felony or a misdemeanor, but specifies a punishment, that becomes the test. If the statute calls for imprisonment in the state prison, the offense is a felony. [Citations.] If such imprisonment is not specified, the offense can only be a misdemeanor or infraction. [Citation.]' (1 Witkin & Epstein, Cal. Criminal Law, ra, Introduction to Crimes, § 75, pp. 91-92.)" (People v. Terry (1996) 47 Cal.App.4th 329, 331.)
It follows that when a defendant is convicted of multiple offenses, including felonies and misdemeanors, the sentencing court may exercise its discretion to impose the county jail misdemeanor sentence concurrently with the prison term, or consecutively to the state prison sentence. In the latter circumstance, the misdemeanor commitment must be served in county jail upon completion of the prison term. (See People v. Erdelen (1996) 46 Cal.App.4th 86, 92 (Erdelen).) Here, the trial court properly ordered the two concurrent misdemeanor sentences to be served "in any institution"; however, it erred by including that same direction as to the consecutive misdemeanor sentence.
Contrary to the Attorney General's assertion, nothing in the record supports a conclusion that defendant was sentenced under section 12025, subdivision (b)(5), which makes the offense punishable as a wobbler (punishable alternatively as a misdemeanor or felony) where the person "has been convicted of a crime against a person or property, or of a narcotics or dangerous drug violation, by imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine." The matter was charged as a misdemeanor without any allegations of additional convictions against a person or property. The jury instructions and verdict form also referred to the offense as a misdemeanor without additions. The trial court specified at sentencing that it considered the offense a misdemeanor.
We therefore order the trial court to make a separate commitment order that the sentence for the section 12025, subdivision (a) conviction be served in county jail, consecutive to defendant's state prison sentence.
In defendant's second claim of sentencing error, he argues that imposition of that same one year consecutive misdemeanor sentence violated his state and federal constitutional rights to equal protection because he would have received one-third of the subordinate term if it had been a felony, rather than the full term commitment for the misdemeanor. We disagree.
Section 1170.1, subdivision (a), provides in pertinent part: "Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, . . . and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses."
"[T]he Legislature clearly indicated its intent that the aggregation provisions of . . . section 1170.1, which limit consecutive terms to one-third of the middle determinate term, apply only in imposing sentence for felonies[.]" (In re Eric J. (1979) 25 Cal.3d 522, 537 [distinguishing the Legislature's intent in sentencing of minors]; accord, Erdelen, supra, 46 Cal.App.4th at pp. 91-92.)
As defendant was subject to a misdemeanor sentence under section 12025, subdivision (a), the aggregation provisions of section 1170.1, subdivision (a), which limit consecutive terms for felonies to one-third of the middle determinate term, did not apply. (See In re Eric J., supra, 25 Cal.3d at p. 537.) The trial court did not err in sentencing defendant to the full consecutive term.
The full misdemeanor sentence did not violate equal protection. Defense counsel did not object to the consecutive term below on equal protection grounds. We therefore agree with the Attorney General that the claim is forfeited under People v. Scott (1994) 9 Cal.4th 331, 353 for failure to interpose a timely and specific objection.
The contention also fails on its merits. The imposition of a full term for the misdemeanor conviction greater than defendant would have received had he been convicted of the felony section 12025 offense does not violate equal protection. In Erdelen, supra, 46 Cal.App.4th 86, the court rejected a virtually identical claim. There, the court explained that "a defendant serving a misdemeanor term consecutive to a prison term is not similarly situated to a defendant serving consecutive prison terms" and that the provisions of subdivision (a) of section 1170.1 providing a one-third limitation for consecutive terms applies only to sentencing of felonies. (Id. at pp. 92-93.) "'There is . . . a significant difference in the quality and duration of punishment, as well as in resultant long-term effects, which are brought about by a conviction for a felony as opposed to that for a misdemeanor.'" (Id. at pp. 91-92, quoting In re Valenti (1986) 178 Cal.App.3d 470, 475.)
Section 12025, subdivisions (1) through (6) provides that the offense must or may be punished as a felony in aggravated situations, such as when the defendant had a prior felony conviction or when he or she knew the concealed firearm was stolen.
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We agree with the reasoning in Erdelen and Valenti, and therefore reject defendant's claim.
DISPOSITION
The conviction for assault by means of force likely to produce great bodily injury (count 4) is reversed for failure to instruct on the lesser included offense of simple assault. Upon remand, the trial court is ordered to make a separate commitment order reflecting that the sentence on the section 12025, subdivision (a) conviction must be served in county jail upon completion of the prison term for the felony convictions. The judgment in all other respects is affirmed.
KRIEGLER, J. We concur:
TURNER, P. J.
ARMSTRONG, J.