Opinion
NOT TO BE PUBLISHED.
Santa Clara County Super. Ct. No. CC812864.
Duffy, J.
Defendant Pablo Diaz was convicted after a trial by jury of assault with a deadly weapon, preventing or dissuading a witness by use of force, and petty theft with a prior conviction. The charges arose out of a July 2008 shoplifting incident at a Santa Clara Safeway store involving defendant, defendant’s brother, Pete Diaz (Pete), and three loss prevention agents from the store. The court found true the allegation that defendant had two prior strike convictions, one prior felony for which he had served a prison term, and one prior serious felony conviction. Defendant was sentenced to a 12-year prison term.
Defendant raises three challenges on appeal. First, he contends that there was insufficient evidence to support his conviction of preventing or dissuading a witness by force from accomplishing an arrest (witness intimidation conviction). He argues that in order to have been convicted under the statute, Penal Code section 136.1, subdivision (c)(1), the prosecution was required to show that defendant committed some act in addition to his assault on one of the loss prevention agents who was attempting to handcuff Pete. Defendant also claims that the court erred in the admission of other-crime evidence, i.e., that defendant was previously convicted as a result of a shoplifting incident occurring about a year earlier at another grocery store. Finally, he contends that the court erred in imposing concurrent sentences for the assault with a deadly weapon and witness intimidation convictions, arguing that the two convictions arose out of the same conduct and were based on a single objective, thereby requiring that the sentence for the witness intimidation conviction be stayed pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise stated.
We conclude that there was sufficient evidence to support the witness intimidation conviction. We find further that the court did not abuse its discretion by admitting the other-crime evidence. Lastly, we conclude that the court did not err in imposing separate concurrent sentences for the assault with a deadly weapon and witness intimidation convictions. We will therefore affirm the judgment.
FACTS
I. Evidence Concerning Charged Offenses
A. Prosecution Evidence
Late in the morning on July 23, 2008, Julio Fifita, a loss prevention agent employed by Monument Security, was working at a Safeway store in Santa Clara. Working with him that day were two other agents, Ricky Jones and Klesha Narcise. Fifita was in the manager’s officer monitoring the meat and liquor areas of the store through a closed circuit camera system, while his two partners sat in a car outside. Fifita observed, through the surveillance system, defendant and two other males, one being Pete, enter the Safeway. The three entered the aisle of the store containing hard liquor and champagne; they moved to the beer aisle and then returned to the liquor aisle. Fifita observed remotely that first defendant and then Pete each grabbed two bottles of tequila and concealed them in the front of their pants. The three men then walked to the front lobby of the store. Fifita contacted his partners by cell phone to alert them that there was a theft in progress. He observed the men pass by the checkstands without stopping and then leave the store; defendant and Pete were still concealing the liquor. Fifita followed them.
Fifita, with Jones and Narcise behind him, approached Pete, identified himself and showed his badge. Defendant fled. Fifita attempted to handcuff Pete, who resisted; the two went to the ground. Jones joined the fray. Narcise was able to recover the two bottles from Pete’s waist; she placed one bottle on the ground and kept one in her hand because she saw defendant returning. Narcise identified herself as store security and told defendant to back up. Defendant did not comply. During the ongoing struggle between Fifita and Pete, defendant grabbed Fifita by his upper torso to free Pete. Pete then ran away.
After Fifita got on his feet, he attempted to handcuff defendant. Defendant grabbed a tequila bottle, lifted it over his shoulder, and moved his arm forward in an attempt to strike Fifita; he was able to remove the bottle from defendant’s right hand, and it fell to the ground and broke. The struggle between defendant and Fifita then moved toward a parked car. Defendant had one hand on Fifita’s neck with Fifita’s back on the front hood of a car; it was difficult for him to breathe. Narcise threw some punches to try to get defendant off of her partner. When that failed, she hit defendant on the head with a tequila bottle, and it broke. Defendant then released Fifita, and Jones and Fifita were able to handcuff defendant. He received a gash on the head as a result of Narcise’s blow.
After defendant was handcuffed, he was taken by Narcise to the Safeway manager’s office. Her partners tried to locate Pete. Fifita and Jones joined Narcise and defendant a short time later. While they were waiting for the police to arrive, defendant, according to Narcise’s testimony, told them that he knew people who could kill them. This threat caused Narcise to feel “[p]retty scared, ” and she did not return to work at the store because of the threat.
Fifita testified that he did not remember defendant threatening his partners and him.
Santa Clara Police Officer Jacob Malae was dispatched to the vicinity of the Safeway at about 11:30 a.m. He observed Pete in a residential area on Toledo about two blocks from the Safeway. Pete was breathing hard and sweating profusely. When he saw Officer Malae, Pete crossed the street and ran. Officer Malae followed Pete to a house and apprehended him.
Santa Clara Police Officer Tom Haverty was responsible for transporting defendant and Pete to jail. He searched defendant and he had no cash on his person.
After the police arrested defendant and Pete, Fifita went around the corner and found two bottles of tequila-both having their security caps (ordinarily removed at the time of purchase) intact-in the bushes. As a result of his struggle with defendant, Fifita was left with scratches on his face near his eye, a scratch on his ear, scratches on his neck, and a bruise on the back of his neck.
B. Defense Evidence
Defendant testified on his own behalf. He went to the Safeway on July 23, 2008, with Pete. Defendant went to the store to get some bread, and Pete at the time said, “ ‘Let’s get some tequila.’ ” Defendant grabbed two bottles, and so did Pete. Pete “look[ed] suspicious” and defendant put the bottles down with the bread and walked away from his brother and the third man. Defendant explained that when he no longer saw the bottles in Pete’s hands, he became concerned that Pete was planning to steal them. Because defendant had “[done] time” for a February 2007 incident and had just gotten out of prison, he wanted to distance himself from any plans Pete had. Defendant did not intend to steal the liquor; he had grabbed the bottles because Pete said he was going to buy the tequila.
In response to questioning about a third man in a Hawaiian shirt in the surveillance video who appeared to be with them, defendant responded that he did not know the man.
Defendant left the store ahead of Pete. As he was walking away, he heard “a thump” and then heard Pete say “help me” in Spanish. He saw two security guards holding Pete by his shirt. As defendant approached, Narcise identified herself as security and told him to step back. She was kneeling and had a bottle in her hands; she threatened to hit defendant with the bottle. While Pete was on the ground, defendant told the security guards, “ ‘Let him go.’ ” He did not grab anyone to pull them off of Pete. There was a broken bottle on the ground with the security cap on it. As defendant turned around to throw the bottle out of the way so that no one was hurt, “something hit [him] like a brick wall. It was Ricky Jones.” Jones tripped defendant and he fell to the ground, and Jones said, “ ‘Give me my cuffs.’ ” Defendant asked why he was being arrested. Narcise escorted him to the office; while he was there, Jones came in and punched him in the forehead.
Santa Clara Officer William Lutz interviewed Fifita and Narcise at the Safeway. Fifita reported that while he was attempting to detain Pete, defendant ran toward Fifita with a bottle in his hand. Narcise did not report to the officer that defendant had threatened her and her partners.
II. Other-Crime Evidence
San Jose Police Officer Mike Bui was on patrol in the late evening of February 10, 2007, and responded to a report of a theft in progress at an Albertson’s grocery store on Blossom Hill Road in San Jose. He stopped a Toyota Camry about two blocks from the store in which there was a female driver, and two passengers, defendant and Pete. There were eight bottles of tequila, with the security caps still on each of the bottles, inside the car.
After the traffic stop, Officer Bui went to the Albertson’s to view a security tape of the store’s interior. The tape depicted Pete and defendant in the liquor aisles of the store; Pete grabbed liquor bottles from the shelf and handed them to defendant. The surveillance tape showed defendant then concealed the bottles inside his jacket. Defendant and Pete then exited the store without paying for the liquor.
PROCEDURAL BACKGROUND
Defendant was charged by amended information filed February 11, 2009, with four counts: (1) assault with a deadly weapon, a bottle (§ 245, subd. (a)(1)); (2) witness intimidation (§ 136.1, subd. (c)(1)); (3) making terrorist threats (§ 422); and (4) petty theft with a prior conviction (§§ 484, 666). The information also alleged that defendant: had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12); one prior felony conviction that resulted in defendant serving a prison term (§ 667.5, subd. (b)); and had one prior serious felony conviction (§ 667, subd. (a)(1)).
After a jury trial, defendant was convicted on February 24, 2009, of assault with a deadly weapon, witness intimidation, and petty theft with a prior. The jury acquitted defendant of the charged crime of making a terrorist threat. In the second phase of the bifurcated trial, after defendant waived a jury, the court found true the remaining allegations.
Trial commenced against both defendant and Pete; Pete, however, pleaded guilty shortly after the People’s opening statement.
On June 26, 2009, the court granted a Romero motion in part by dismissing one of the strike priors. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) On the same day, the court sentenced defendant to 12 years in prison, based upon a midterm sentence of three years for the assault with a deadly weapon conviction, doubled based upon the prior strike (§§ 667, subds. (b)-(i), 1170.12); a five-year term for the serious prior felony conviction (§ 667, subd. (a)(1)); and a one-year term for the prison prior (§ 667.5, subd. (b)). The court also imposed a midterm sentence of three years, doubled based upon the prior strike for the witness intimidation conviction, and a midterm sentence of two years, doubled based upon the prior strike for the petty theft with a prior conviction, both sentences to run concurrently with the sentence imposed for the assault with a deadly weapon conviction. Defendant filed a timely notice of appeal.
DISCUSSION
I. Sufficiency of Evidence for Witness Intimidation Conviction
A. Defendant’s Contentions
Defendant asserts that there was insufficient evidence to support his conviction of witness intimidation pursuant to section 136.1, subdivision (c)(1). His argument runs as follows. Under subdivision (b)(3) of section 136.1, a person commits a crime punishable as a felony or misdemeanor (i.e., a “wobbler”; see § 136.1, subd. (a)), if he or she “ ‘attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from... [a]rresting or causing or seeking the arrest of any person in connection with that victimization’....” Under subdivision (c)(1) of section 136.1, such witness dissuasion is punishable as a felony when “[the] person doing any of the acts described in subdivision (a) or (b) [does so] knowingly and maliciously... [¶ and]... the act is accompanied by force or by an express or implied threat of force or violence, upon a witness....” Focusing on the subdivision (c) language, “the act is accompanied by, ” defendant argues: “The plain language of section 136.1 requires an act which is separate from force or a threat of force. Here, there was no act separate from a violent assault. [Defendant] was properly convicted of a felony assault for his attack on Fifita, but he cannot stand convicted of violating section 136.1.”
B. Discussion
In reviewing a sufficiency-of-the-evidence claim by a criminal defendant, the standard is “ ‘whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576.) In so doing, “the appellate court ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citations.]” (Id. at pp. 576-577.) “[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Snow (2003) 30 Cal.4th 43, 66.)
A violation of section 136.1 is punishable as a felony where the conduct is done “knowingly and maliciously” (§ 136.1, subd. (c)), and (as applicable here) “is accompanied by force or by an express or implied threat of force or violence....” (§ 136.1, subd. (c)(1).) A violation of section 136.1 is based upon the defendant’s course of conduct, because the language of the statute “focuses on an unlawful goal or effect, the prevention of testimony [or, in this instance, the prevention of an arrest], rather than on any particular action taken to produce that end. ‘Prevent’ and ‘dissuade’ denote conduct which can occur over a period of time as well as instantaneously. The gravamen of the offense is the cumulative outcome of any number of acts, any one of which alone might not be criminal.” (People v. Salvato (1991) 234 Cal.App.3d 872, 883.) In order to determine whether the defendant’s conduct constitutes a violation of section 136.1, the entire context of the interaction between the defendant and the victim or witness must be examined.
Thus, in People v. Mendoza (1997) 59 Cal.App.4th 1333, 1337 (Mendoza), two days after a woman testified at the preliminary hearing involving charges against the defendant’s brother, who was charged with a peace officer’s murder, the defendant visited the witness’s home, and told her that “she had ‘fucked up his brother’s testimony, ’ and that ‘[h]e was going to talk to some guys from Happy Town [a street gang].’ ” The appellate court, inter alia, rejected the defendant’s contention that his statements were insufficient as a matter of law to constitute a violation of section 136.1, concluding that (1) the latter statement could be construed as an implied threat that he would arrange to have the referenced gang inflict force or violence on the witness, and (2) the former statement was not simply a reference to the witness’s past testimony, given that she was expected to testify in the trial of the defendant’s brother. (Mendoza, at pp. 1343-1344.) The Mendoza court, quoting People v. Thomas (1978) 83 Cal.App.3d 511, 514, observed: “ ‘There is, of course, no talismanic requirement that a defendant must say “Don't testify” or words tantamount thereto, in order to commit the charged offenses. As long as his words or actions support the inference that he... attempted by threat of force to induce a person to withhold testimony [citation], a defendant is properly’ convicted of a violation of section 136.1, subdivision (c)(1). [Citation.]” (Mendoza, at p. 1344.)
As noted above, defendant argues that witness dissuasion that is punishable as a felony under section 136.1, subdivision (c)(1) differs from that punishable as a “wobbler” under subdivision (b)(1), in that the former involves an “act... accompanied by force” or a threat of force or violence; where the only “act” involved in the witness dissuasion is force or the threat of force itself, no violation of section 136.1 can occur. Because (he argues) defendant’s only “act” in preventing Fifita from arresting Pete was defendant’s force itself, he did not violate section 136.1, subdivision (c)(1). Defendant’s interpretation of section 136.1 is flawed.
As the Supreme Court has explained, “The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute. [Citations.] But ‘[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’ [Citations.] Thus, ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’ [Citation.]” (People v. Pieters (1991) 52 Cal.3d 894, 898-899; see also Commission On Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 290 [rejecting appellate court’s interpretation of statute where, “although consistent with the statute’s language, is unreasonable because it would lead to arbitrary and anomalous results”].)
Here, while a literal reading of subdivision (c)(1) of section 136.1 might support defendant’s contention that the phrase “accompanied by” means that the force or threat of force or violence perpetrated upon the victim or witness must be in addition to some other act that would otherwise constitute a violation of subdivision (a) or (b) of the statute, such a construction would lead to absurd consequences antithetical to the intended broad reach of section 136.1. (See People v. Foster (2007) 155 Cal.App.4th 331, 337 [language of § 136.1 is broad, and statute was intended “to discourage all who attempted to dissuade witnesses, regardless of the means selected or the success of the attempt”].) To help prove this point, we posit two hypothetical, similar scenarios in which the defendant clearly acts knowingly and maliciously and with the use of force to prevent an arrest. In the first instance, the defendant assaults a victim or a witness to prevent the arrest of another person, and simultaneously shouts, “Don’t arrest that person.” In the second example, the identical assault occurs without the defendant’s verbal command. Under defendant’s interpretation of the statute, the defendant in the first scenario has violated section 136.1, subdivision (c)(1), but the defendant in the second scenario has not. Both of the defendants had the same “unlawful goal or effect, the prevention of” an arrest (People v. Salvato, supra, 234 Cal.App.3d at p. 883), and acted knowingly and maliciously with force to accomplish that objective. But defendant claims that one who knowingly and maliciously uses force to prevent a witness from making an arrest-if he or she did nothing more, such as make the command, “Don’t arrest that person”-would not be subject to prosecution under section 136.1. Such a construction would subvert the intent and application of the statute, and would permit persons who have knowingly and maliciously attempted by force or threat of force to prevent or dissuade witnesses from making or seeking an arrest to escape prosecution under section 136.1, an interpretation that “would lead to arbitrary and anomalous results.” (Commission On Peace Officer Standards & Training v. Superior Court, supra, 42 Cal.4th at p. 290.) We reject such an interpretation that would result in such a restrictive application of the statute. (See Foster, at p. 337.)
The prosecution established that while Fifita was struggling to handcuff Pete, defendant approached them, ignored Narcise’s command to back off, and grabbed Fifita by his upper torso, successfully freeing Pete. This clearly constituted substantial evidence to support a finding under section 136.1, subdivision (c)(1), that defendant knowingly and maliciously and through the use of force attempted to dissuade or prevent a witness, Fifita, from making an arrest. Moreover, even were we to credit defendant’s interpretation of the statute-which, for the reasons stated above, we do not-there was nonetheless evidence of conduct in addition to defendant’s application of force to support his conviction under section 136.1, subdivision (c)(1). Although he denied pulling Fifita away from Pete, defendant did testify that while Pete was on the ground, defendant told the security guards, “ ‘Let him go.’ ”
Viewing the whole record in a manner that favors the judgment, there was “substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Snow, supra, 30 Cal.4th at p. 66.) We therefore reject defendant’s claim that there was insufficient evidence to support the witness intimidation conviction.
II. Admissibility of Other-Crime Evidence
A. Background and Contentions
During in limine motions heard by the court before the jury was impaneled, the People indicated that they would be offering witnesses to establish a prior shoplifting crime involving defendant and Pete occurring on February 10, 2007, at an Albertson’s grocery store. The offer of proof was that the evidence would show that defendant and his brother walked into the store, grabbed eight bottles of tequila, hid them inside their clothing, and left the store without paying. They were then arrested in a vehicle and the arresting officer found the tequila bottles inside the car with the security caps still intact. The prosecutor stated that the evidence was offered to show intent and to establish a common plan or scheme.
Pete’s counsel opposed the People’s in limine motion, arguing that the other-crime evidence was “extremely prejudicial” and would lead the jury to decide that the present crime was committed based upon the prior crime. Pete’s counsel indicated that to the extent “the People are trying to show intent[, w]e can stipulate to that. We can come to an agreement the People don’t have to do that.” Defendant’s counsel, Casey Clift, then stated “I will join in that objection” without further elaboration. The court concluded “that the probative value of this prior incident outweighs its prejudic[ial] effects.” It held that the People would be permitted to introduce the other-crime evidence “specifically to show intent.” After selection of the jury but before opening statements, the court addressed further issues concerning the introduction of the other-crime evidence, including whether the proffered evidence would be admitted to show common plan or design as well as intent. Neither defense counsel indicated during that argument that they would stipulate to the element of intent to obviate the prosecution’s need to introduce the other-crime evidence.
Defendant contends that the court committed prejudicial error when it allowed the prosecution to admit this other-crime evidence. He argues that because he offered to stipulate to the intent element of the petty theft offense, and the court erred in its refusal of that offer, any evidence of the prior theft offense “was irrelevant to any disputed issue” and “was highly prejudicial” to him. Defendant argues further-putting aside his offer to stipulate to the intent element-that the evidence was irrelevant because “[h]e never claimed he lacked the intent to steal. Rather, he testified he took nothing out of Safeway.”
B. Other-Crime Evidence Generally and Standard of Review
We review a trial court’s admission of uncharged-crimes evidence “for an abuse of discretion, examining the evidence in the light most favorable to the court’s ruling. [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 120; see also People v. Cole (2004) 33 Cal.4th 1158, 1195.) Such abuse of discretion will be found only where the court’s “ ruling ‘falls outside the bounds of reason.’ ” (People v. Kipp (1998) 18 Cal.4th 349, 369, 371.)
Evidence of a person’s conduct on one occasion is generally not admissible to prove the conduct at issue at trial. (See Evid. Code, § 1101, subd. (a).) Thus, evidence of the commission of other crimes is generally inadmissible if its purpose is simply to show defendant’s criminal propensity or bad character. (People v. Gibson (1976) 56 Cal.App.3d 119, 127.) Evidence of other crimes or acts, however, may be admissible for a limited purpose under certain circumstances: “Nothing in [Evidence Code section 1101] prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, ...) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).)
The Supreme Court has articulated a three-part test in evaluating the admissibility of other-crime evidence: “(1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence.” (People v. Thompson (1980) 27 Cal.3d 303, 315 (Thompson), disapproved on another ground in People v. Williams (1988) 44 Cal.3d 883, 907, fn. 7.) The materiality prong is satisfied “if the fact is either an ultimate fact or an intermediate fact from which an ultimate fact can be inferred, and the ultimate fact is actually in dispute.” (People v. Gillard (1997) 57 Cal.App.4th 136, 160.) The second Thompson element requires that the court scrutinize the proffered evidence to determine its probative value on the issue(s) for which it is offered. The other-act evidence has a tendency to prove or disprove the material fact when it “serves ‘logically, naturally, and by reasonable inference’ to establish [or disprove] that fact. [Citations.]” (Thompson, at p. 316, fn. omitted.)
In evaluating the relevance of other-act evidence to determine its admissibility under Evidence Code section 1101, subdivision (b), it is important to identify the purpose for which the evidence is offered. (People v. Ewoldt (1994) 7 Cal.4th 380, 406 (Ewoldt) “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.” (Id. at p. 402.) The other-act evidence, if offered for this purpose, “must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ibid.; see also People v. Kipp, supra, 18 Cal.4th at p. 371.)
Lastly, under Thompson, supra, 27 Cal.3d at page 315, the court must ascertain and evaluate “the existence of any rule or policy requiring the exclusion of relevant evidence.” Those “policies limiting admission [include] those contained in Evidence Code section 352.” (People v. Thompson (1988) 45 Cal.3d 86, 109.) This evaluation is required because “[e]vidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’ ” (Ewoldt, supra, 7 Cal.4th at p. 404.) “[F]or uncharged crime evidence to be admissible, it must have substantial probative value that is not greatly outweighed by the potential that undue prejudice will result from admitting the evidence.” (People v. Lenart (2004) 32 Cal.4th 1107, 1123.)
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
C. Discussion of Claimed Error
1. Offer to stipulate
Defendant’s principal argument is that because he offered to stipulate to the element of intent in connection with the petty theft offense, the other-crime evidence “was irrelevant to any disputed issue” in the case. We reject that contention on the ground that its fundamental premise-i.e., that there in fact was an offer to stipulate made by defendant-is without support.
As noted above (see pt. II.A.), it was the attorney for Pete, not defendant, who presented argument in opposition to the admission of the other-crime evidence. It was Pete’s counsel who indicated to the court that he would “stipulate to” the element of intent. After Pete’s counsel argued further that the other-crime evidence should be excluded, defendant’s counsel, Clift, stated simply, “I will join in that objection.” At no time during the in limine proceeding or thereafter in reported proceedings did Clift, on behalf of defendant, offer to stipulate that the prosecution need not prove the element of intent for the petty theft offense charged. (See (Harris v. Spinali Auto Sales, Inc. (1966) 240 Cal.App.2d 447, 452 [stipulations are favored by courts, but terms of stipulation “must be definite and certain to render the proper basis for a judicial decision”].) We therefore conclude that defendant made no such offer to stipulate, and, accordingly, his argument that the court erred in admitting the other-crime evidence by refusing such nonexistent offer fails. (Cf. People v. Rich (1988) 45 Cal.3d 1036, 1107 [rejecting contention that evidence showing malice should have been excluded because of the defendant’s offer to stipulate, finding that offer did not embrace a stipulation to malice].)
The fact that the record does not show that defendant offered to stipulate to intent does not suggest that had he made such an offer, any refusal by the court to accept it would have constituted error. “The general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the state's case of its persuasiveness and forcefulness.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1007. Accord, People v. Sakarias (2000) 22 Cal.4th 596, 629; People v. Scheid (1997) 16 Cal.4th 1, 16-17.)
2. Evidence’s materiality and tendency to prove intent
Defendant also argues that, irrespective of whether he offered to stipulate to intent, he did not contest that element; rather the evidence he presented was that he stole nothing. He asserts that since he disputed that he committed the crime at all, the other-crime evidence should not have been admitted to establish intent. We reject this argument as well.
“[A] fact-like [the] defendant’s intent-generally becomes ‘disputed’ when it is raised by a plea of not guilty or a denial of an allegation. [Citation.] Such a fact remains ‘disputed’ until it is resolved.” (People v. Rowland (1992) 4 Cal.4th 238, 260; see also People v. Steele (2002) 27 Cal.4th 1230, 1243-1244 [prior killing by defendant admissible on issue of defendant’s mental state for charged homicide to which he pleaded not guilty; notwithstanding defendant’s claim that he conceded intent at trial, prosecution was “entitled to prove its case and especially to prove a fact so central to the basic question of guilt as intent”].) People v. Roldan (2005) 35 Cal.4th 646 (Roldan), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 420, footnote 22, is instructive. There, the defendant, convicted of first degree murder, robbery, and attempted murder in connection with a robbery at a swap meet, challenged the admission of other-crime evidence, namely, the defendant’s participation in another swap meet robbery occurring two years earlier. (Roldan, at p. 705.) The high court held, inter alia, that the other-crime evidence was admissible on the issue of intent, rejecting the defendant’s contention that the evidence should have been excluded because he didn’t significantly contest the issue of intent: “ ‘ “We have long recognized ‘that if a person acts similarly in similar situations, he probably harbors the same intent in each instance’ [citations], and that such prior conduct may be relevant circumstantial evidence of the actor’s most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.” ’ [Citation.] In other words, if [the] defendant intended permanently to deprive the victim of the [prior] crime of his money, the jury legitimately could infer he harbored the same intent with regard to his actions toward [the victim of the charged crime]. Although [the] defendant argues the intent to deprive was not ‘significantly’ in issue, it nevertheless was part of the prosecution’s burden to prove such intent.” (Id. at pp. 706-707.)
Similarly, here, the fact that defendant intended to steal the bottles of tequila by smuggling them in his coat and removing them from the Albertson’s store without paying for them was relevant because the trier of fact could reasonably infer that he had the same intent in the charged crime when he secreted the tequila bottles in his pants and left the Safeway store without paying for them. (Roldan, supra, 35 Cal.4th at pp. 706-707.) It is of no consequence that the focus of the defense was that defendant-according to his own testimony, which was disbelieved by the trier of fact-initially took the bottles of tequila from the shelves thinking that Pete would be paying for them and left them in the store after realizing that Pete planned to shoplift the tequila. Defendant nonetheless disputed the petty theft charge, and the prosecution was required to prove each of its elements, including that defendant had “the specific intent to permanently deprive a person of property.” (People v. Ortega (1998) 19 Cal.4th 686, 693, disapproved on another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.)
Defendant cites People v. Balcom (1994) 7 Cal.4th 414 (Balcom), and People v. Dellinger (1984) 163 Cal.App.3d 284 (Dellinger), in support of his position that the other-crime evidence should have been excluded because his defense was that he did not commit the theft. Neither case supports his position.
In Balcom, the People argued that evidence that the defendant had committed rape in Michigan several weeks earlier was admissible to establish intent for the charged rape. (Balcom, supra, 7 Cal.4th at p. 421.) The Supreme Court disagreed. It found that the other-crime evidence had “limited probative value” on the issue of intent which was “outweighed by the substantial prejudicial effect of such evidence.” (Id. at p. 423, fn. omitted.) In so holding, the court acknowledged that the defendant’s not guilty plea placed all elements (including intent) of the crimes charged at issue. (Id. at p. 422.) Given the particular facts presented, however-where the victim testified that she was raped after the defendant had placed a gun to her head, while the defendant conceded that the two had had sex but that it had been consensual and had not involved a gun or was otherwise against the victim’s will-the “wholly divergent accounts create[d] no middle ground from which the jury could [have] conclude[d] that [the] defendant committed the proscribed act of engaging in sexual intercourse with the victim against her will by holding a gun to her head, but lacked criminal intent because, for example, he honestly and reasonably, but mistakenly, believed she [had] voluntarily consented. [Citation.]” (Id. at p. 422.)
The court nonetheless concluded the other-crime evidence was admissible to show that the defendant had acted with a common design or plan, and that its probative value on that basis outweighed its prejudicial effect. (Balcom, supra, 7 Cal.4th at pp. 423-427.)
In Dellinger, supra, 163 Cal.App.3d 284, the defendant had been convicted of first-degree murder of his two-year-old stepdaughter (id. at p. 289), where the cause of death was initially ruled accidental but toxicological results received later indicated that there had been cocaine in the girl’s blood and large quantities in her liver and stomach (id. at p. 290). The defendant claimed that the trial court erred by admitting evidence of the defendant’s cocaine use at least five months before the incident, which evidence the respondent claimed established that the defendant “had the knowledge to commit the crime of murder by poison.” (Id. at p. 297.) The defendant had denied furnishing cocaine to the child or leaving the drug available to her. (Id. at p. 298.) The appellate court, concluding that the prior-cocaine-use evidence “had only marginal probative value on the issues ‘actually in dispute, ’ ” held that the “tremendous potential for prejudicing the jury with [that] evidence” made it inadmissible under Evidence Code section 352. (Dellinger, at p. 298.)
The circumstances in Balcom and Dellinger are very different from those present here. Unlike in Balcom, where the “wholly divergent accounts create[d] no middle ground” for the jury between a finding of rape (with the requisite intent) and a finding of not guilty on the charge (Balcom, supra, 7 Cal.4th at p. 422), the evidence in this case was not so unambiguous that the court could conclude that the prosecution, in essence, was relieved of the obligation of proving the element of defendant’s intent to permanently deprive the owner of its property. Likewise, the circumstances in Dellinger were very different, in that there were significant issues as to whether any crime had even occurred and there was significant danger that a jury might bootstrap evidence of the defendant’s prior cocaine use to find that there was cocaine present in the home at the time of the girl’s death and the defendant either gave it to her or made it accessible to her. Here, there was little question from the evidence that a theft of tequila bottles had occurred at the Safeway, but the dispute was whether both defendant and Pete were involved in the crime, or, as defendant asserted in his testimony, only his brother committed the theft. The prosecution was entitled to introduce the other-crime evidence as part of its case that defendant had the intent to permanently deprive the owner of its property.
Moreover, contrary to defendant’s apparent position, neither Balcom nor Dellinger holds as a general proposition that other-crime evidence is not admissible to show intent where the defendant denies entirely the commission of the charged crime. Nor do the cases support the correlative argument that a defendant must admit some but not all elements of a charged crime in order for other-crime evidence to be admissible to show intent. As the Supreme Court held in People v. Soper (2009) 45 Cal.4th 759, 778, “As we recently observed in Alcala [v. Superior Court (2008)] 43 Cal.4th 1205, a fact finder properly may consider admissible ‘other crimes’ evidence to prove intent, so long as (1) the evidence is sufficient to sustain a finding that the defendant committed both sets of crimes [citations], and further (2) the threshold standard articulated in Ewoldt [supra, 7 Cal.4th 380, ] can be satisfied-that is, ‘the factual similarities among the charges tend to demonstrate that in each instance the perpetrator harbored’ the requisite intent. [Citations.] There is no requirement that it must be conceded, or a court must be able to assume, that the defendant was the perpetrator in both sets of offenses.”
Based upon the foregoing, we conclude that the other-crime evidence satisfied the first two Thompson admissibility requirements, i.e., “(1) the materiality of the fact sought to be proved or disproved; [and] (2) the tendency of the uncharged crime to prove or disprove the material fact.” (Thompson, supra, 27 Cal.3d at p. 315.) We must still consider “the existence of any rule or policy requiring the exclusion of relevant evidence” (ibid.), i.e., we must determine whether the court should have exercised its discretion to exclude the other-crime evidence under Evidence Code section 352. (See Balcom, supra, 7 Cal.4th at pp. 426-427.)
Evidence of the prior theft at the Albertson’s store was probative on the question of intent. The trier of fact could have reasonably viewed defendant’s conduct in secreting tequila bottles inside his coat and removing them from the Albertson’s store without paying for them as supportive of the prosecution’s contention that defendant harbored the similar intent to permanently deprive Safeway of its property when he concealed the tequila bottles in his pants and left the store.
On the other side of the Evidence Code section 352 equation, we acknowledge that admission of the other-crime evidence had a certain level of potential prejudicial effect. (See Ewoldt, supra, 7 Cal.4th at p. 404.) As was the case with the other-crime evidence that the Balcom court concluded was admissible on the question of common design or plan, notwithstanding Evidence Code section 352 concerns, evidence of the prior Albertson’s theft here did not create a significant risk of jury confusion, undue consumption of time, or prejudice, since testimony on the matter was brief, and defendant was convicted and served a prison sentence in connection with the prior shoplifting crime. Thus, the reasoning of the Balcom court applies here: “As for the prejudicial impact of the evidence, the circumstance that the uncharged acts resulted in a criminal conviction and a substantial prison term decreases, in two ways, the potential for prejudice, undue consumption of time, or confusing the issues. (Evid. Code, § 352.) First, the jury was not tempted to convict defendant of the charged offenses, regardless of his guilt, in order to assure that he would be punished for the uncharged offenses, because the jury was aware he had been sentenced to a substantial prison term for the uncharged offenses. Second, the attention of the jury was not diverted to a determination whether or not defendant had committed the uncharged offenses, because that fact had been determined conclusively by the resulting Michigan conviction. [Citation.]” (Balcom, supra, 7 Cal.4th at p. 427.)
In addition, the trial court instructed the jury (under CALCRIM No. 375) that it could, but was not required to, consider the Albertson’s theft only “for the limited purpose of deciding whether or not the defendant acted with the intent to deprive the owner permanently of the property he took, as alleged in Count 5, ” and to “not consider this evidence for any other purpose, except for the limited purpose of determining the defendant’s credibility. Do not conclude from this evidence that the defendant had a bad character or is disposed to commit crime.” (See People v. Cain (1995) 10 Cal.4th 1, 34 [the jury is presumed to follow the instructions as given].) Moreover, the prosecution did nothing to exacerbate the likelihood of significant prejudice or jury confusion. In the deputy district attorney’s argument, he only briefly alluded to the Albertson’s theft and, consistently with the instructions, told the jury that it could look at the prior crime in determining defendant’s intent.
Finally, the possibility that defendant’s prior theft conviction may have negatively impacted the defense is not the issue. “The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.)
The probative value of the other-crime evidence was thus not “substantially outweighed by the probability that its admission [would] (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) Accordingly, the court did not err in exercising its discretion to admit the other-crime evidence for the limited purpose of establishing the element of intent for the charged crime of petty theft.
III. Stay Of Sentence For Count 5 Conviction (Section 654)
A. Background and Contentions
The court imposed a six-year prison sentence for the assault with a deadly weapon conviction. The court also imposed, inter alia, a six-year concurrent sentence for the witness intimidation conviction. The record includes no discussion on the subject of whether the sentence imposed on the witness intimidation conviction was appropriate under section 654.
Defendant contends that the imposition of a concurrent sentence with respect to the witness intimidation conviction was prohibited by section 654. He argues that the assault with a deadly weapon and witness intimidation charges-Fifita being the victim in both instances-arose out of a single transaction in which the sole objective was to prevent an arrest. As such, he claims that the convictions were not subject to multiple punishment, and the prison term imposed for the witness intimidation conviction should have been stayed pursuant to section 654. The Attorney General responds that there were multiple objectives in the commission of the two crimes.
B. Applicable Law
Section 654, subdivision (a) provides: “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....” The statute thus “precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) The purpose of section 654 “is... to ensure that punishment is commensurate with a defendant’s criminal culpability. [Citations.]” (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
As construed by the Supreme Court, “[w]hether 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.) And as the high court later emphasized, “[t]he initial inquiry in any section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)
A trial court’s findings on the question of whether the defendant’s criminal conduct is divisible such that it constitutes more than one act under section 654 “may be either express or implied from the court's ruling. [Citation.] In the absence of any reference to Penal Code section 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective. [Citations.]” (People v. Tarris (2009) 180 Cal.App.4th 612, 626-627.)
In reviewing a court’s finding that multiple punishment for separate convictions was appropriate because the defendant held more than one objective in committing those crimes, we evaluate whether there was substantial evidence to support that determination. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) The question of whether the defendant entertained multiple criminal objectives being one of fact for the trial court, we will sustain the court’s findings if there is substantial evidence to support them. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.)
C. Discussion of Claim of Error
At the outset, we note that defendant did not challenge the propriety of the sentence for the witness intimidation conviction below. But this did not constitute a forfeiture of defendant’s section 654 argument on appeal. “ ‘Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.’ [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 295; see also People v. Lopez (2004) 119 Cal.App.4th 132, 138.)
Defendant argues that both the convictions of assault with a deadly weapon and witness intimidation were “based on a single objective: to prevent Fifita from effectuating an arrest.” He stresses that the facts underlying both crimes involved a “continuing course of conduct against a single victim, ” and that “[t]here was no break in the assault” from the time it commenced until the struggle concluded. We reject defendant’s claim that the court was barred under section 654 from imposing separate punishment for the two crimes.
The crime of witness intimidation under section 136.1, subdivision (c)(1), was completed after defendant freed Pete from Fifita’s grasp by physically pulling the loss prevention agent off of his brother. Indeed, the prosecution made this argument to the jury. The evidence supporting the assault with a deadly weapon conviction consisted of defendant’s subsequently grabbing a bottle, raising it over his head, and bringing it forward to strike Fifita. From this evidence, the court could have impliedly found that there were multiple objectives in this series of acts. Defendant’s act of physically pulling Fifita off of Pete may have reasonably been determined to have been for the purpose of preventing Pete’s arrest. Defendant’s subsequent acts of attempting to strike Fifita with a bottle may have reasonably been intended for the separate purposes of preventing defendant’s own arrest, inflicting harm on Fifita, or some combination of those intentions. In any event there was substantial evidence to support the trial court’s implied finding that defendant “entertained multiple criminal objectives which were independent of and not merely incidental to each other, ” allowing defendant to be punished separately for the assault with a deadly weapon and witness intimidation convictions, “even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon, supra, 8 Cal.3d at p. 639; see People v. Hairston (2009) 174 Cal.App.4th 231, 240.)
The deputy district attorney argued: “The moment that [defendant] pulls or attempts to pull Julio Fifita off of Pete Diaz, he is guilty of [violating section 136.1]. Put aside the bottle later, put aside the choking later[;] all of that is irrelevant at this point for this count for our purposes right now. The moment he comes back and he pulls Julio Fifita off of Pete Diaz, he is guilty of [violating section 136.1].”
Defendant’s reliance on People v. Latimer (1993) 5 Cal.4th 1203, and People v. Martinez (1980) 109 Cal.App.3d 851, is misplaced. In Latimer, the court held that the defendant, who kidnapped a woman, drove her to the desert, and raped her, could not be punished for both kidnapping and rape, because the intent behind the kidnapping was simply to facilitate the rape. (Latimer, at p. 1216.) In Martinez, the court held that where the defendant attempted to rape the victim and afterwards held her for brief time in attempt to dissuade her from reporting the crime, a false imprisonment conviction was not subject to punishment separate from the attempted rape. (Martinez, at p.858.) In both cases, the court concluded that the defendant harbored a single objective and intent in the commission of the acts resulting in multiple convictions. Here, there was substantial evidence to support the implied conclusion that there were distinct, multiple objectives for defendant’s actions which were the basis for his assault and witness intimidation convictions.
Nor does the fact that the acts constituting the assault followed immediately after the acts constituting witness intimidation compel the conclusion that section 654 bars multiple punishment in this instance. “It is [the] defendant’s intent and objective, not the temporal proximity of his offenses which determine whether the transaction is indivisible. [Citations.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
In this instance, based upon the particular facts, we conclude that there was substantial evidence to support the implied finding by the court that there were multiple objectives in the commission of the two crimes involving Fifita of which defendant was convicted, namely, assault with a deadly weapon and witness intimidation. We therefore find that the court did not err by imposing a concurrent sentence for the witness intimidation conviction.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.