Opinion
A129150
01-10-2012
THE PEOPLE, Plaintiff and Respondent, v. CHARLES E. JONES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. 211431)
Charles E. Jones appeals from convictions of assault with force likely to cause great bodily injury, in circumstances involving domestic violence, and misdemeanor battery upon a spouse or person with whom the defendant has had a dating relationship. He contends substantial evidence supports the determination that he had a "dating relationship" with the victim as required for both convictions, and that the trial court erred in failing to give the jury a unanimity instruction. We affirm the convictions but conclude that the sentence on the battery conviction should have been stayed.
STATEMENT OF THE CASE
Appellant was charged by information filed on February 3, 2010, with two felonies, assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1) ) and making criminal threats (§ 422), and one misdemeanor, battery upon a cohabitant or person with whom the defendant has had a dating relationship (§ 243, subd. (e)(1)). It was alleged in connection with the assault that appellant personally inflicted great bodily injury upon the victim in circumstances involving domestic violence. (§ 12022.7, subd. (e).)
All further references will be to the Penal Code unless otherwise specified.
After a brief trial, the jury found appellant guilty of the charged assault and found the domestic violence/great bodily injury allegation true. The jury also found appellant guilty of misdemeanor battery. It found him not guilty of making criminal threats or the lesser included offense of attempting to make criminal threats.
On July 9, the court sentenced appellant to the middle term of three years for the assault and a concurrent one year for the battery. The court struck the additional punishment for the section 12022.7 enhancement.
Appellant filed a timely notice of appeal on July 13, 2010.
STATEMENT OF FACTS
Bridget Haines testified that she "used to be [appellant's] girlfriend." She met appellant in December 2007 and started "going with him" in early 2008; they dated for about a year and broke up around February 2009. They broke up because they were having "a lot of problems," including with "abuse," but there was no particular fight when they broke up; appellant just returned Haines's key, packed his clothes and left. Haines denied that she was smoking crack the day appellant left. While they were dating, Haines sometimes suspected appellant was "cheating" with other women, but she could not prove it. When he broke up with her, appellant told Haines he had another girlfriend. After they broke up, Haines and appellant "kicked it every now and then" but they were not "a couple."
At about 9 p.m. on August 3, 2009, while Haines was in her room playing solitaire and watching television, appellant and his "God brother" Condy Wiggins came to her house. Haines had met Wiggins through appellant and was friends with him, but she had never had a "relationship" with Wiggins and he only came to her house when appellant was there. That night, Haines had been drinking a beer, and appellant and Wiggins were each drinking a can of "Mickey" when they arrived. Haines testified that appellant usually drank Bud Light and gin; she did not know him to have an allergic reaction to malt liquor.
The three decided to play a card game called "pitty pat," for quarters. Haines was sitting on the side of her bed, appellant was sitting to her right, and Williams was across from Haines, on his knees at the bottom of the bed. Haines asked appellant if he had any change and he "got an attitude is you asking me or telling me?" His facial features were "mean with attitude." Haines gave appellant some change to play with and they began to play on Haines' bed. She won a game and grabbed her change, not wanting to continue playing because "he wasn't playing right."
Appellant unexpectedly slapped Haines on the right side of her head, causing the left side of her head to hit the headboard of the bed. They began to argue and appellant said, "Well, I don't care. Call the police." Haines said she was not going to call the police but "just don't put your hands on me no more like you hit me in the first place." They "got into a little conflict" and Haines told appellant, "This is my house. If you don't like what . . . I'm saying, then you can leave." Appellant said he was not going anywhere. Haines replied, "Okay. So if you're not going to leave my house, then do me a favor. Just don't say nothing to me." Appellant told Haines if she kept talking, he was going to "knock [her] teeth out." She said, "Well, no you're not." Appellant stood in front of where Haines was sitting and she told him, "Don't hit me no more. Don't put your hands on me." The next thing she knew, appellant started hitting her with his fists. She lay on her bed and covered her head with her hands; he hit her in the rib cage, the left side of her face and her jaw. He hit her so many times she could not count, as she repeatedly told him to stop; she was "seeing stars and lights" and testified, "I can't even describe the pain." Haines heard Wiggins telling appellant to stop. At a moment when Haines thought he had stopped and moved her hand away from her face, appellant hit her "one more time" in her eye. Appellant got up and left, telling Wiggins to come before the "bitch" called the police. Wiggins told appellant to go outside, not wanting to leave before he saw that Haines was okay. Haines testified that about 15 or 20 minutes elapsed from the time appellant first hit her until he stopped.
Wiggins's description of the incident differed slightly from Haines's in some of the details. He testified that the card game was called "tunk." Appellant did not have any change, so Wiggins loaned him some. Appellant lost and Haines loaned him more change, he lost again and Wiggins loaned him more, then appellant started winning and collected a "nice little lump sum of change." Wiggins, "playing with him," commented that appellant had not given the borrowed change back now that he was winning, then Haines said the same thing. It seemed like that "snapped something in him" and appellant took the change from the bed and threw it in the hall. Wiggins told appellant he could give his change back when he was done having his fit.
Appellant walked back into the room but instead of going to the side of the bed where he had been, he went to Haines's side and when Wiggins looked up, appellant had "just started whaling on her." Appellant and Haines had been arguing and Wiggins had not been paying attention; Haines was still talking when appellant came up to her and "the next thing I know, boom, the hits started." Wiggins jumped up, saying "Oh, my god, man, what are you doing?" Appellant hit Haines's face and she "crumble[d]," falling back on the bed and grabbing her face. Wiggins testified that there was probably another "hit to the side of the head" and, when Haines fell back on the bed, "two or three shots to her body." He grabbed appellant and pulled him off, but "it was too late then and the damage was done." Wiggins testified that appellant hit Haines "very hard." He had known appellant 25 or 30 years and had "never seen him look like that before." Wiggins did not recall whether appellant said he was going to knock Haines's teeth out, explaining, "I don't remember all the wording. I just kind of remember the things that were done. I can't really go back and say." Wiggins helped Haines sit back up and saw that she was "really messed up." When appellant told Wiggins to come because Haines was going to call the police, Wiggins said he needed to stay to see that Haines was all right. She said she was going to call an ambulance and Wiggins took appellant away so nothing else would happen.
Haines testified that when appellant stopped hitting her, she ran to the bathroom. Her eye had instantly swollen to look like a "big balloon." Crying, Haines went to her neighbor's but declined an offer to be taken to the hospital because she had to pick her mother up from a bus later that night. The neighbor gave Haines an ice pack for her eye, which was not all the way closed.
When Haines woke up the next morning, the whole side of her face was swollen and her eye was black and blue and closed. She went to the hospital, where the police interviewed her and photographed her injuries. The parties stipulated that in lieu of testimony from the doctor who treated Haines, certain of her medical records would be admitted into evidence; these showed that Haines's orbital bone was fractured. Haines testified that her eye remained swollen shut for about a week and a half and the bruising on her face lasted about three weeks. At the time of trial, more than eight months after the incident, Haines was getting a lot of headaches and the vision in her left eye would sometimes get blurry.
On October 4, 2009, appellant approached Haines while she was in a vehicle at a car wash and asked why she had the police looking for him. She said, "because you almost put my eye out." Appellant told her she "better fix it," which she understood to mean he wanted her to drop the charges. She told him she already fixed it and it could not be undone.
Haines acknowledged that she had been convicted of a misdemeanor in 2005 based on failing to make a disclosure related to receiving governmental aid. She was arrested in 2001 after hitting her 17-year-old daughter on the arm for disrespecting her, but that case was dismissed. She had smoked crack "a long time ago," but went to a drug program from which she graduated in 1996. She had relapsed "a couple of times" since.
Wiggins testified that Haines had been appellant's "girlfriend." Prior to August 3, 2009, Wiggins had been to Haines's house often because appellant was "staying over there with her." "He was dating her." Wiggins was working in San Francisco and came to Haines' house "every day after work to see him." Wiggins denied having ever made a pass at Haines or offered her money for sex, saying "that was something that [appellant] dreamed up." He did not know exactly when appellant and Haines broke up because "they were constantly breaking up and making up and breaking up and making up." Wiggins and Haines called each other "every now and then." She called him her "brother-in-law." Wiggins testified that, toward the end of 2008, Haines was going to loan him $600 to retrieve his car, which had been impounded. She gave the money to appellant to give to Wiggins, but appellant took the money and "disappeared." Although appellant never gave Wiggins the money, Wiggins maintained their friendship, considering it "worth more than money."
Defense
Appellant testified that he and Haines "dated on and off" for a couple of months more than a year, ending in the middle of March 2009. Haines was a jealous person, on two or three occasions blaming him for talking to "the next door neighbor, the girls down the street." One day in March 2009, he used his key to come into the house and found Haines smoking a crack pipe. He packed his things and left, moving to his mother's house. Appellant testified, "I didn't need that in my life. I went through it with my wife." Haines tried to "get back with" him "about 15 or 30 times," repeatedly calling him, and he told her he was busy and hung up. When Haines found out appellant was dating another woman, she "wasn't too happy."
Appellant testified that he was not at Haines's house on August 3, 2009, and did not punch her that day, nor did he remember seeing Haines at the car wash and telling her the police were after him and she should "fix it." In the late afternoon of August 3, appellant bought a van and Wiggins drove appellant's car back to his house while appellant drove the van, arriving at Wiggins's house around 5:15 p.m. Appellant left Wiggins's house and went to 35th Avenue in Oakland, where he worked on the steering column of the van until it got dark. He then fell asleep in the van until the next morning. After August 3, appellant saw Wiggins every day for about two weeks and Wiggins did not say anything about appellant punching Wiggins; the first appellant heard of the incident was when he was arrested.
Appellant testified that he saw Haines only one time after breaking up with her, when he bought some tires from her mother. He stated, "I was dating another woman, so why would I go date somebody I broke up with when I'm dating another woman?" Appellant testified that Wiggins and Haines "hung around each other" after appellant broke up with Haines and he saw Wiggins's car in Haines's driveway many times. Before appellant and Haines broke up, Wiggins would be at the house when appellant came home from work. Appellant did not mind that until Haines told him Wiggins had made a pass at her, saying "I know that you love my brother but, you know, I find you attractive and I think that I could care for you more than he can. He offered her $100." When appellant asked Wiggins about this, Wiggins said it happened because he was drunk. Appellant believed that there was a conspiracy between Haines and Wiggins and that the two might be dating each other.
Appellant testified that he did not use the $600 Haines was going to loan Wiggins to get the car out of impound because Wiggins was not willing to pay an additional amount due; instead, he and Haines bought a car from a neighbor for appellant to use. Wiggins had "had animosity" toward appellant ever since.
Appellant also testified that he had not drunk malt liquor since 1984 because it gave him acid reflux; instead, he drank Bud Light. Mickey's is a malt liquor. Appellant acknowledged he had been convicted of receiving stolen property in 2002.
DISCUSSION
I.
Appellant contends the prosecution presented no evidence that he and Haines had a "dating relationship" as that term is defined for purposes of the domestic violence allegation under section 12022.7, subdivision (e). Section 12022.7, subdivision (e), provides: "Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, 'domestic violence' has the meaning provided in subdivision (b) of Section 13700." (Italics added.)
Section 13700 defines "domestic violence" as "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, 'cohabitant' means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship." (Italics added.)
Family Code section 6210 defines "dating relationship" as "frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations."
Appellant urges that the prosecution failed to prove that the relationship he and Haines had for over a year was a "dating relationship" because, while appellant had a key to Haines's house, kept clothing there, and went there after work to stay with her, there was no evidence of the frequency of his visits to her house, what their living arrangements were, whether they had a physical relationship or how they felt about each other. According to appellant, the record supports no more than a suspicion that he and Haines "had sexual relations and were at some point genuinely fond of one another." Recognizing that in assessing the sufficiency of the evidence to support the verdict we must view the evidence in the light most favorable to the prosecution and presume the existence of every fact the jury could reasonably deduce from the evidence (People v. Johnson (1980) 26 Cal.3d 557, 576), appellant urges that speculation and conjecture can not fill gaps left by the prosecution's failure to present evidence (People v. Alkow (1950) 97 Cal.App.2d 797, 802-803.)
In People v. Rucker (2005) 126 Cal.App.4th 1107, 1116, the court explained that the statutory definition of "dating relationship" could apply to relationship of comparatively short duration: "The definition of a dating relationship adopted by the Legislature does not require 'serious courtship,' an 'increasingly exclusive interest,' 'shared expectation of growth,' or that the relationship endures for a length of time. (Oriola [v. Thaler (2000)] 84 Cal.App.4th [397,] 412.) The statutory definition requires 'frequent, intimate associations,' a definition that does not preclude a relatively new dating relationship. The Legislature was entitled to conclude the domestic violence statutes should apply to a range of dating relationships. The Legislature could reasonably conclude dating relationships, even when new, have unique emotional and privacy aspects that do not exist in other social or business relationships and those aspects may lead to domestic violence early in a relationship. An individual who engages in domestic violence may have a pattern of abuse that carries over from short-term relationship to short-term relationship." A " 'dating relationship' does not include 'a casual relationship or an ordinary fraternization between [two] individuals in a business or social context.' " (Id., at p. 1117.)
In People v. Upsher (2007) 155 Cal.App.4th 1311, 1316, 1323, the court found sufficient evidence of a dating relationship where the victim of a battery, Teague, was seen running from appellant's house at 4:30 a.m., screaming, with the defendant chasing her; the defendant told the witness, who was trying to intervene, that it was none of his business "what I do to my girl"; the defendant used a nickname for Teague during the incident; and the defendant, throughout his testimony, referred to Teague as "my lady friend" and "my girl." The court found that the evidence and "reasonable inferences that may be drawn from it were sufficient to permit a reasonable jury to conclude Teague and [the defendant] had enough of an emotional and affectional involvement to constitute a dating relationship." (Id., at p. 1324.)
Here, Haines testified that she "used to be [appellant's] girlfriend," she started "going with him" in 2008, they dated for about a year, while they were dating, Haines sometimes suspected appellant was "cheating" with other women, when he "broke up" with her, he told her he had "another girlfriend," when they broke up, appellant gave back her key and "just packed his clothes and he left . . and he didn't come back," and after they broke up, they "kicked it every now and then" but she "wasn't with him" and they were not "a couple." Wiggins testified that Haines had been appellant's "girlfriend," appellant and Haines were "constantly breaking up and making up and breaking up and making up," and he went to Haines's house every day after work to see appellant because appellant was "staying over there with her . . . he was dating her."
Appellant himself testified that he and Haines "dated on and off" for over a year, Haines was jealous of him talking to other women, he had a key to Haines's house and kept belongings there, Wiggins would be at Haines's house when appellant came "home" from work, and Haines repeatedly tried to "get back with" him and "wasn't too happy" when she learned he was dating another woman. Appellant testified that while they were dating, Haines told him Wiggins, making a pass at her, said, "I know that you love my brother but, you know, I find you attractive and I think that I could care for you more than he can." When asked about seeing Haines after they broke up, appellant commented, "I was dating another woman, so why would I go date somebody I broke up with when I'm dating another woman?"
All this evidence compels the inference that appellant and Haines had a relationship involving "frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations." Indeed, this is the only reasonable inference to be drawn from the witnesses' consistent references to Haines being appellant's "girlfriend" and to the two "dating" and later "breaking up," as well as Haines's references to no longer being "with" appellant and no longer being "a couple." The evidence showed that appellant lived part or full time with Haines and that she was jealous of his contact with other women. Appellant denied assaulting Haines or being at her house on August 3, 2009, but his description of their relationship during the year plus that they "dated" was fully consistent with the statutory definition.
II.
Appellant similarly argues no evidence was presented demonstrating he and Haines had a "dating relationship" as required for his battery conviction under section 243, subdivision (e)(1). This statute provides in pertinent part, "When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiance, or fiancee, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment." (Italics added.)
The definition of "dating relationship" for purposes of section 243, subdivision (e)(1), is not different from the definition for purposes of section 12022.7. For the reasons discussed in the preceding section of this opinion, the evidence was sufficient to support the battery conviction.
Appellant argues that the trial court erred in its instructions on the battery count by telling the jury appellant was charged with "battery against his former girlfriend," thereby suggesting Haines was in fact his "former girlfriend." According to appellant, this raised an irrelevant issue that may have confused the jury, which was required to determine not whether Haines was appellant's former girlfriend but whether he had a "dating relationship" with her.
In connection with the enhancement allegation attached to the assault charge, the trial court defined "dating relationship" for the jury in accordance with the statutory definition we have discussed. Immediately thereafter, the court told the jury appellant was "charged in count two with battery against his former girlfriend, a person with whom the defendant previously had a dating relationship, in violation of Penal Code section 243(e)(1). [¶] To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant willfully touched Bridgette Haines in a harmful or offensive manner; [¶] and [¶] 2. Bridgette Haines is a person with whom the defendant previously had a dating relationship." The court then defined each of the terms used in the battery instruction, including repeating the definition of "dating relationship" as "frequent intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations."
There was nothing confusing about these instructions. The court did not tell the jury that Haines was in fact appellant's former girlfriend; it said appellant was charged with an offense against his former girlfriend. More importantly, the instruction expressly described "former girlfriend" as "a person with whom the defendant previously had a dating relationship." Nothing in the instructions relieved the jury of the requirement that it determine whether appellant and Haines previously had a dating relationship.
III.
Appellant contends his battery conviction must be reversed because the trial court failed to instruct the jurors that they must unanimously agree which of two discrete acts constituted the battery. He contends some jurors could have found him guilty of this offense based on the slap Haines described as causing her head to hit the headboard of the bed while others based their decision on the blows inflicted to Haines' head and body.
The jury was instructed that, for the battery charge, the prosecution was required to prove that appellant "willfully touched" Haines "in a harmful or offensive manner," that "someone commits an act willfully when he or she does it willingly or on purpose," and that "the slightest touching can be enough to commit a battery if it's done in a rude or angry way."
In a criminal case, the jury verdict must be unanimous and the jury "must agree unanimously the defendant is guilty of a specific crime." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) "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. Castro (1901) 133 Cal. 11, 13; People v. Williams (1901) 133 Cal. 165, 168; CALJIC No. 17.01; but see People v. Jones (1990) 51 Cal. 3d 294 .) [¶] This requirement of unanimity as to the criminal act '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.)" (People v. Russo, supra, 25 Cal.4th at p. 1132.)
"On the other hand, no unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct. 'The "continuous conduct" rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.' (People v. Stankewitz (1990) 51 Cal.3d 72, 100; see also People v. Harris (1994) 9 Cal.4th 407, 431-432, fn. 14.)" (People v. Dieguez (2001) 89 Cal.App.4th 266, 275; People v. Curry (2007) 158 Cal.App.4th 766, 782.) Some courts, rather than finding no error, find harmless error where "the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that the defendant committed all acts if he committed any" or "the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence." (People v. Thompson (1995) 36 Cal.App.4th 843, 853.)
Respondent argues that, because the prosecutor made clear during closing argument that the assault charge was based on appellant's repeatedly punching Haines in the face and body, the act constituting the simple battery "necessarily" was the "slapping incident." The record does not support this assertion. The prosecutor's argument focused on the beating as the factual basis for the assault charge and great bodily injury enhancement, but no one told the jury that the battery charge had to be supported by evidence of a touching that was not also part of the beating. The slap was never mentioned as the factual predicate for a separate offense.
The prosecutor devoted little time to the battery charge, stating only the following: "We have count two. This one is just a little simple two-prong crime. The defendant willfully and unlawfully - and actually, unlawfully won't be there. Just willfully touched Ms. Haines in a harmful or offensive manner. [¶] I'm going to get to the offensive manner. I just means touching. It could be through clothing. It could be through anything. It could be a hit. But it's in an angry or offensive manner. [¶] And Ms. Haines is the defendant's former girlfriend, that's uncontested. So defendant was there. He hurt Ms. Haines. And he's guilty of that crime too." While the slap would have fit the definition of battery, so would any of the blows inflicted during the general beating.
Respondent urges that the prosecutor made clear that the battery charge was based on the slap by distinguishing it from the beating with fists as "minor harm, slap in the face." This remark, however, was made not in the context of the battery charge but in explaining the meaning of great bodily injury: "Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
Minor harm, slap in the face. Push. Is starting harm? No physical bodily injury? But that's a fact for you to consider. The fact that she couldn't open her eye for a week and a half, that she had a fracture in there, and that she had bruising all over her face and rib cage. That's what you need to consider because it's your job."
The only other references the prosecutor made to the slap were in discussing the elements of the charged threat, when she argued that the fact appellant hit Haines right before the verbal argument and then attacked her supported determinations that appellant communicated a serious intention and immediate prospect of carrying out the threat and that the threat caused Haines reasonable fear.
Although the prosecutor never specifically identified which act the jury should view as the battery, this is clearly a case in which "the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct." (People v. Dieguez, supra, 89 Cal.App.4th at p. 275.) At most, the initial slap was separated from the prolonged beating only by moments of verbal argument between appellant and Haines. Appellant's sole defense was that he was not at Haines's house that night. Once the jurors rejected appellant's defense, there was no reason for them to believe he beat her but not that he slapped her. Moreover, it is impossible to imagine that any jury hearing the evidence in this case would not have concluded appellant committed a battery based on any one of the punches delivered during the beating. Even if there were jurors who did not believe the incident started with a slap, as Haines described, the verdict on the assault charge and enhancement necessarily demonstrates that every juror believed appellant beat Haines and inflicted great bodily injury. Whether the jurors additionally believed appellant slapped Haines is irrelevant.
Appellant disagrees with this view, arguing that the fact the jury found him not guilty of making a criminal threat demonstrates it did not fully credit Haines's testimony. Appellant urges at least some of the jurors may have believed only the part of Haines's testimony that was corroborated by Wiggins — describing the prolonged beating — but not the part describing the threat Wiggins did not specifically remember hearing or the initial slap Wiggins did not see. As explained in the text, it was not necessary for all the jurors to agree that appellant slapped Haines because all necessarily agreed that he committed battery during the assault.
--------
The only problem presented in this case is that, because the assault and battery occurred during a single, continuous course of criminal conduct, appellant was not subject to separate punishment for both offenses. (Pen. Code, § 654.) The trial court imposed a one-year concurrent sentence on the battery conviction, but the proper procedure in this circumstance would have been to stay sentence on that conviction. (People v. Pearson (1986) 42 Cal.3d 351, 360.) Appellant did not raise this issue either in the trial court or in this court. A sentence violating section 654, however, is unauthorized and therefore must be corrected. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) As a practical matter, of course, appellant has already served more than one year of his sentence.
DISPOSITION
The abstract of judgment shall be corrected to reflect that the sentence on the misdemeanor battery count was stayed. In all other respects, the judgment is affirmed.
_________________________
Kline, P.J.
We concur:
_________________________
Haerle, J.
_________________________
Lambden, J.