Opinion
C089797
04-17-2020
THE PEOPLE, Plaintiff and Respondent, v. AUSTIN JAMES JENKS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. S18CRF0218)
Defendant, Austin James Jenks, punched, choked, and threatened his girlfriend (Doe) for 30 minutes inside their shared motor home in an episode of violence in November 2018. After a jury found defendant guilty of assault by means of force likely to cause great bodily injury, infliction of corporal injury on a cohabitant, criminal threats, and false imprisonment, the trial court sentenced defendant to a total term of nine years four months, staying the sentence for infliction of corporal injury on a cohabitant pursuant to Penal Code section 654. On appeal, defendant contends the sentence on his criminal threats and false imprisonment offenses also should be stayed. We agree, and remand for resentencing.
Further undesignated section references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our recitation to that necessary to provide a general background and determination of defendant's issues on appeal.
On November 25, 2018, an officer in the South Lake Tahoe Police Department responded to a report of domestic violence at a motor home. The officer observed Doe with "a lot of facial injuries," including a "large laceration on her forehead" and "swelling and bruising under her eyes." Doe also had visible injuries on her neck.
Doe told the officer that defendant, Doe's boyfriend who lived with her in the motor home, assaulted her and "choked her repeatedly to the point of near unconsciousness," after the two had "argued for about 20 minutes" when defendant accused Doe of being unfaithful to him. Doe told an emergency medical technician who responded to the scene that she "had gotten into an argument with [defendant] and that the argument escalated and she was dragged throughout the motor home and then she was thrown outside."
At a hospital later that day, Doe told the officer that, after the 20-minute argument, defendant began "punching and slamming [Doe] into the walls" of the motor home. Defendant alternated between choking Doe to the point of near unconsciousness and hitting her with his fist and slamming her into the walls. During the attack, defendant said to Doe, "I'll fucking kill you," and "[a]ren't you going to suck some more . . . dick?"
Doe also told the officer that "at some point toward the end of" the 30-minute assault, Doe "tried to get out of the [motor home], open the door and [defendant] followed her, she got out and he followed her out and slammed her head into" a "concrete block" that was on the ground outside the motor home.
Evidence of defendant's uncharged prior assaults on Doe was presented at trial, as was evidence concerning an October 2018 assault that was also before the jury but is not material to the issue on appeal.
The prosecutor's closing argument painted a picture wherein the false imprisonment offense and the criminal threats offense were intertwined with the assault offense. Regarding the criminal threats offense, the prosecutor told the jury, "Obviously, while you're in the middle of beating somebody as severely as [Doe is] being beaten and you say you're going to kill them, you're wanting them to believe it." Regarding the false imprisonment offense, the prosecutor said: "[W]hen [defendant is] holding [Doe], he's keeping her in a place that she doesn't want to be. She's trying to get away from him. In this case we know that she tried to get away from him to the point where she actually jumped out of the [motor home] and he continued to chase her and keep her in a place where she clearly didn't want to be. That is what false imprisonment is in this case."
In May 2019, a jury found defendant guilty of: assault by means of force likely to cause great bodily injury (count 1); infliction of corporal injury on a cohabitant (count 2); criminal threats (count 3); false imprisonment; (count 4); and, regarding the October 2018 incident, a second count of infliction of corporal injury on a cohabitant (count 5). As to counts 1 and 2, the jury found that defendant personally inflicted great bodily injury under circumstances involving domestic violence.
Defendant's presentence memorandum argued that the trial court had to stay sentences on counts 2, 3, and 4 pursuant to section 654. At the sentencing hearing, the trial court decided to stay only the sentence for count 2, explaining: "The court disagrees with [counsel for defendant] as it related to the 654 issues concerning, not [count 2], but the other charges for which he was convicted. I don't think those are to be suspended under 654."
The trial court sentenced defendant to a total term of nine years four months, consisting of: the upper term of four years for assault, plus the lower term of three years for the great bodily injury enhancement; the upper term of four years for infliction of corporal injury, plus three years for the great bodily injury enhancement (and stayed pursuant to § 654); consecutive terms of eight months for criminal threats and false imprisonment (one-third the middle term); and a consecutive term of one year for the 2018 conduct (one-third the middle term).
DISCUSSION
Defendant contends execution of the sentence should be stayed pursuant to section 654 on his convictions for criminal threats and false imprisonment. Regarding the conviction for making criminal threats, defendant claims he threatened Doe during the "continuous course of violence" in which he assaulted Doe, and with the same objective as the assault, "to terrorize . . . Doe for her supposed infidelity toward" defendant. Regarding the conviction for false imprisonment, defendant claims that offense "was incidental to the assault with the only objective of allowing [defendant] to accomplish the assault." Defendant contends the substance of the prosecutor's closing argument supports his claims.
The People concede the sentence for false imprisonment should be stayed because defendant "accomplished" the crime "by the same conduct and for the same purpose" as the assault. But the People argue section 654 does not apply to defendant's conviction for criminal threats, because he had a "separate intent and objective" from the assault when he committed the crime: defendant "intended to terrorize [Doe] and possibly keep her silent about his violent conduct, but not to inflict physical harm." Relying on People v. Mejia (2017) 9 Cal.App.5th 1036, the People argue that defendant's commission of criminal threats "required [defendant] to have the specific intent to terrorize Doe mentally or emotionally," a "separate intent and objective from aggravated assault . . . ."
We conclude that defendant's sentences on both of these counts should be stayed pursuant to section 654.
Section 654 provides in pertinent part: "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 statute does not prohibit multiple convictions for the same conduct, only multiple punishments. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) "In such a case, the proper procedure is to stay execution of sentence on one of the offenses." (Ibid.)
"In any section 654 inquiry, the court must initially ascertain the defendant's objective and intent. [Citation.] ' "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.' " [Citation.] 'Whether the defendant maintained multiple criminal objectives is determined from all the circumstances and is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it.' " (People v. Tom (2018) 22 Cal.App.5th 250, 260.)
If the trial court does not stay a sentence pursuant to section 654, and offers no factual basis for its decision, we presume the court found that the defendant harbored a separate intent and objective for each offense. (People v. Jones (2002) 103 Cal.App.4th 1139, 1147.)
Here, the trial court imposed consecutive sentences on defendant for criminal threats and false imprisonment with little explanation. Accordingly, we presume the trial court found defendant had independent objectives for committing those two crimes in contrast to the assault. But this determination is not supported by substantial evidence.
As the People concede, the trial court's implicit finding of multiple intents for the assault offense and the false imprisonment offense is not supported by substantial evidence because the false imprisonment offense was part of defendant's indivisible course of conduct, whose objective was to assault Doe. (See People v. Williams (2017) 7 Cal.App.5th 644, 695 ["The false imprisonments were part of an indivisible course of conduct with the objective of robbery of merchandise from the backs of the stores"].)
Likewise, the trial court's implicit finding of multiple intents for the assault offense and the criminal threats offense is not supported by substantial evidence. The People's reliance on Mejia for the proposition that defendant's criminal threats offense involved a separate intent and objective from the assault offense, is unpersuasive.
In Mejia, the court considered whether a defendant could be punished separately for torture, spousal rape, spousal abuse, and criminal threats. The court ruled that because sentence was imposed for the torture offense, section 654 required staying punishment for the spousal rape and spousal abuse offenses, because "all of the acts of spousal rape and [spousal abuse] were included among the acts underlying the torture count and were essential to satisfying an element of that offense." (People v. Mejia, supra, 9 Cal.App.5th at pp. 1036, 1046.) But regarding the criminal threats offense, the court concluded section 654 did not bar imposition of separate punishment, because "mentally or emotionally terrorizing the victim by means of threats is an objective separate from the intent to cause extreme physical pain," an element of torture. (Mejia, at p. 1047, italics added.)
Mejia is distinguishable, as the defendant in that case subjected his spouse to a months-long campaign of rapes, assaults, and threats. (People v. Mejia, supra, 9 Cal.App.5th at p. 1039 [abusiveness "got worse" in March 2013]; id. at p. 1041 [police intervened in August 2013].) Here, the relevant incident lasted about 30 minutes and defendant made the criminal threat while he assaulted Doe.
Further -- and largely because the facts of this case are so different from the facts of Mejia -- application of Mejia's analysis here, as the People propose, would require us to ignore the Supreme Court's admonition in People v. Britt (2004) 32 Cal.4th 944, not to "parse[ ]" a defendant's objectives "too finely" when conducting a section 654 inquiry. (Britt, at p. 953.)
In Britt, the court ruled that section 654 precluded multiple punishment for failures to notify authorities in a county defendant moved to and authorities in the county defendant moved from, two separate sex-offender registration crimes. (People v. Britt, supra, 32 Cal.4th at pp. 949, 951-954.) The court disagreed with the decision on review, which concluded that defendant "had two separate objectives: '(1) to mislead law enforcement and the residents of one community to believe that the sex offender remains there; and (2) to conceal from law enforcement and the residents of another community the fact that the sex offender is now residing in that community.' " (Id. at p. 953.) The court explained, "Here the objective -- avoiding police surveillance -- was achieved just once, but only by the combination of both reporting violations." (Ibid.) "[F]inding separate objectives here -- to mislead or conceal information from the law enforcement agency in each county -- parses the objectives too finely." (Ibid.)
Here, the parties agree that defendant's objective was, broadly, to "terrorize" Doe, but the People contend that defendant had additional objectives, "to . . . possibly to keep [Doe] silent" and "to terrorize Doe mentally and emotionally." The People point to no evidence in the record supporting the presence of the first separate objective identified and, in light of Britt, the second separate objective identified by the People is "too fine[]" a parsing, which culls from defendant's 30-minute assault distinct physical and emotional dimensions of his intent to terrorize Doe, and characterizes those dimensions as separate "objectives."
Accordingly, because the trial court's determination that defendant had separate and independent objectives for committing the assault on the one hand and the false imprisonment and criminal threat offenses on the other hand is not supported by substantial evidence, defendant may be punished only for the assault.
Defendant's contention that the prosecutor's remarks, and the absence of a unanimity instruction are consistent with his "single course of conduct" theory, while true, is of little help in answering the question whether defendant had separate objectives during that single course of conduct. (People v. Tom, supra, 22 Cal.App.5th at p. 260 [multiple punishments are permissible for independent violations committed with separate objectives during an indivisible course of conduct].)
Further, we do not rely on the prosecutor's closing remarks to the jury in making our determination, though defendant urges us to do so. Our task is to review the trial court's implicit finding of separate objectives, not the prosecutor's theory of the case. (See People v. Leonard (2014) 228 Cal.App.4th 465, 500 [the prosecutor's "closing argument" did "not compel the application of section 654," because a "prosecutor's statements are not evidence, and they are not binding on the jury or the court"].)
We will remand this matter for a full resentencing. "[W]hen part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' " (People v. Buycks (2018) 5 Cal.5th 857, 893.) The trial court has jurisdiction to modify every aspect of the sentence on the counts that were affirmed. (Ibid.) " ' "This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The validity of one component infects the entire scheme." ' " (People v. Hubbard (2018) 27 Cal.App.5th 9, 13.)
ABSTRACT OF JUDGMENT
The abstract of judgment incorrectly recorded count 1 as a conviction for assault with a deadly weapon, rather than assault with force likely to produce great bodily injury. This must be corrected on remand.
DISPOSITION
We remand the matter for resentencing. The sentences on counts 3 and 4 must be stayed pursuant to section 654 and count 1 must be recorded as a conviction for assault with force likely to produce great bodily injury. The trial court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Hoch, J.