Opinion
D075930
03-13-2020
THE PEOPLE, Plaintiff and Respondent, v. ALBERT JOSEPH MOYER IV, Defendant and Appellant.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1313665) APPEAL from a judgment of the Superior Court of Riverside County, Elisabeth Sichel, Judge. Affirmed. Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Albert Joseph Moyer IV, appeals after a jury convicted him on six counts related to a violent incident involving his then fiancée.
The jury convicted Moyer of attempted voluntary manslaughter, inflicting corporal injury on a cohabitant, making a criminal threat, assault with force likely to cause great bodily injury, dissuading a witness, and false imprisonment.
On appeal, Moyer raises two claims. First, Moyer asserts that the trial court erred in admitting the preliminary hearing testimony of the victim, who was unavailable to testify at trial. Moyer claims that admission of the victim's preliminary hearing testimony at trial deprived him of his Sixth Amendment right to confrontation. Moyer acknowledges that an attorney who specially appeared to represent him at the preliminary hearing cross-examined the victim, but he asserts that the attorney's cross-examination was ineffective. Moyer argues that the attorney was a "stand-in attorney" who was appearing on short notice, in place of Moyer's retained attorney, and that there were a number of inadequacies in the attorney's cross-examination of the victim. The People argue that Moyer forfeited this contention by failing to object to the admission of the victim's preliminary hearing testimony at trial on confrontation grounds. Moyer further asserts that his trial attorney—a different attorney from the one who represented him at the preliminary hearing—rendered ineffective assistance in failing to object to the admission of the victim's preliminary hearing testimony on confrontation grounds.
Second, Moyer claims that the trial court erred in failing to stay punishment on count 3 pursuant to Penal Code section 654. According to Moyer, his convictions on the criminal threat charge and the attempted voluntary manslaughter charge may not be separately punished because the offenses were incident to a single course of conduct and objective.
We conclude that Moyer's contentions are without merit. We therefore affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution case
Tonya Lewis and Moyer were engaged at the time of the incident that led to the charges in this case and were living together in an apartment.
On the evening on October 7, 2013, Lewis and Moyer began arguing about social media. Moyer accused Lewis of being unfaithful to him. Both parties had been drinking. As the argument became more heated, Lewis removed her engagement ring and retreated to the bedroom. Moyer became enraged and began calling Lewis a "bitch" and a "whore." Lewis locked the door to the bedroom and refused to allow Moyer to enter the room. In response, Moyer began hitting the door handle with a hammer.
Once Moyer managed to get the door open, he entered the bedroom and told Lewis that he would make her "understand what it really feels like to be violated." Moyer got on top of Lewis, put a pillow over her face, and began to smother her. Lewis could not breathe and tried to use her hands to remove the pillow. Lewis eventually realized that Moyer was not going to release her, so she grabbed a "glass candle" from a nearby dresser drawer and used it to hit Moyer in the face. After Lewis struck Moyer, she was able to "get out of [Moyer's] hold," and she attempted to flee to the bathroom. Before Lewis made it into the bathroom, Moyer grabbed her by her hair. He told her that he was going to show her " 'how it feels to really be abused' " and began to choke her with both hands. Moyer was squeezing Lewis's neck "very hard" and she was unable to breathe. When Moyer finally let go of Lewis's neck, she fell to her knees and vomited.
Moyer then went to the kitchen and retrieved a steak knife. At some point, Lewis tried to run out the front door, but Moyer stopped her. She began yelling loudly for help. Moyer was holding the knife but was not pointing it at Lewis. Moyer told Lewis that she had ruined his life because she had caused one of his teeth to become dislodged when she hit him with the glass candle. Moyer said that the damage to his teeth would prevent anyone from ever loving him. He offered the knife to Lewis and told her that she had to stab him, and that if she did not, she would have to watch him kill himself. Lewis refused to stab Moyer and called him crazy.
Lewis managed to escape from Moyer's grip and tried to get to the apartment's third floor balcony, intending to jump from the balcony to get away from Moyer. Moyer grabbed her before she could jump and dragged her back inside. Moyer was "pinning [Lewis] down," while she was screaming for help.
By this point, Moyer had dropped the knife and had begun to strangle Lewis. While he had his hands around her neck, Moyer said, " 'Bitch, I'm going to kill you.' "
Neighbors heard screaming and fighting and heard someone yelling things, such as " 'Help me!' " and " 'He's trying to kill me' " and " 'Get off me!' " At least one neighbor called the apartment complex's "courtesy patrol" after hearing someone yelling for help. As the yelling intensified, neighbors called 911.
One neighbor attempted to locate the apartment where the yelling was coming from. After the screaming had died down a bit, the neighbor saw a woman come out of the apartment. The woman appeared to be "confused, disoriented, not really knowing what to do." The neighbor identified Lewis as the woman who had come out of the apartment. He could see that she had blood coming from her nose and mouth. The neighbor tried to get Lewis's attention. When Lewis saw the neighbor, she accompanied him to his apartment. The neighbor's wife had already called 911, and they all waited for police and medical personnel to respond.
When police officers arrived, Lewis informed them that her boyfriend had strangled her. Lewis had cuts, scratches, and bruises all over her body. She also had a "busted" lip, damage to her nose, and two black eyes. She was having trouble breathing and speaking, and felt pain when she swallowed. Lewis also complained to officers that she had a headache and was feeling dizzy. Lewis refused medical treatment because she did not have health insurance.
Officers went into the apartment and could see that a struggle had taken place. There was blood on the carpet and the walls and vomit in the bathroom. The door to the master bedroom was broken, as were various other items in the apartment. Police found two hammers, one on the couch and one on the floor next to the couch, under a pillow. The sheets had been pulled off of the bed and there was blood on the mattress, as well as on the sheets. A glass candle that was found on the floor next to the bed had a drop of blood on it.
Police found Moyer hiding in a nearby parking lot. He was "bobbing and weaving between cars," which indicated to officers that he was "trying to avoid detection." Moyer had two cuts on his forehead, and cuts on his lips. He was carrying a backpack that contained Lewis's purse, credit cards, keys and cell phone. Lewis told officers that the backpack was one that Moyer used on a daily basis for work, and that Moyer had no reason to be in possession of her items.
The prosecution called an expert on domestic violence who testified that domestic violence often happens in secret. The expert explained that it can be difficult for victims to leave their abusers, that domestic violence frequently involves repeated instances, and that abusers tend to deny or minimize their actions. The expert testified that when an individual vomits after being strangled, it is a sign that the body is struggling for survival. Other indications that a strangulation have occurred include the victim suffering bruising around the jawline, feeling dizzy, and having a headache.
The prosecution presented evidence of other incidents of domestic violence that Moyer had perpetrated against Lewis. On April 1, 2013, in Long Beach, police officers responding to a 911 call found Lewis walking away from her apartment. Lewis told a police officer that Moyer had hit her after she threatened to end their relationship, and that he had taken her cell phone and her keys. Lewis had a scratch on her forehead, but she refused medical attention. Lewis testified at the preliminary hearing that during this incident, Moyer had choked her and "dragged [her] around," and "things like that." In November of that year, employees at a hotel heard "blood-curdling screams" coming from a hotel room. When employees knocked, Moyer opened the door, but then quickly tried to close it. Based on Moyer's behavior, and the fact that he had blood on him, the employees believed that "something was obviously wrong." One employee kicked the door open, and another employee called 911. Once the employees were able to get inside the room, they found Lewis "huddled" in the corner, crying, while Moyer, who was naked, paced back and forth. Lewis had injuries to her wrist, lip, and foot. An officer interviewed Lewis. Although she appeared to have been drinking, she was able to communicate with the officer. Lewis explained that Moyer had slammed her wrist in the door when she tried to leave the hotel room, and that he had also pulled her by her hair. At the preliminary hearing, Lewis stated that during this incident, Moyer had smashed her hand in the door at the hotel.
2. The defense
Moyer testified in his own defense. He stated that he and Lewis had started dating in 2011, although they had known each other for a number of years before that, and that Lewis was jealous, but he was not.
Moyer testified that on the date of the incident that led to the charges in the case, he and Lewis had stopped at a liquor store to get alcohol. He stated that Lewis was "starting to have alcohol issues" during this time period. After they purchased the alcohol, she began drinking. According to Moyer, when they returned to their apartment, Lewis's dog threw up. Moyer was out on the balcony talking on the phone with his sister. When he came back into the apartment, Lewis was angry. She pushed him, slapped him, took his phone, and yelled at him.
After Lewis refused to return Moyer's phone, he took her phone and locked himself in the bedroom. Lewis threatened to damage Moyer's laptop computer if he did not give her phone back to her, so Moyer returned the phone. Moyer then went into the bathroom and saw that his laptop computer had been placed near the bathtub and that it was wet. He became angry and confronted Lewis and called her crazy. Moyer was upset and wanted to leave the apartment, but he could not leave because he could not find his keys. Lewis locked herself in the bedroom and refused to open the door. Moyer was impatient so he hit the locking mechanism; Moyer maintained that he had not used a hammer to break the door. According to Moyer, Lewis had used the hammer to break open the door when her dog had locked itself in the bedroom.
Moyer further testified that he attempted to see whether Lewis was hiding his keys in her hands, and that when he tried to do so, she hit him two or three times with a candle. Moyer was bleeding and had lost one of his teeth. Lewis apologized profusely, and said she was afraid that he was going to hit her. He testified that he told her, "Why would I hit you? . . . I never put my hands on you in my life."
Moyer admitted that he had called Lewis a "crazy ass bitch," and said that he went to get a knife from the kitchen and told her she "might as well finish the job." Lewis refused to stab him, and he put the knife away. Moyer admitted that he had made a comment about Lewis having been molested by her father, which made Lewis furious. She began trying to punch him and was swearing at him. Moyer tried to pin her down, and he accidentally hit her while trying to deflect a blow. He wanted to leave but still could not find his keys; Moyer had previously testified that the front door to the apartment required a key to be unlocked from either the inside or the outside. Eventually the door was opened and Moyer left because Lewis had threatened to call a friend to "beat [his] ass." Moyer claimed that he had taken Lewis's belongings because he was unable to lock the door and did not want her property to be stolen.
Moyer testified that, a few days after the incident, Lewis apologized to him. He also stated that over the following nine months, Lewis called him daily, and that they had gone on a trip to Las Vegas together. According to Moyer, Lewis wanted to get back together, but Moyer refused.
Moyer denied having been present during a domestic violence incident in Long Beach on April 1, 2013, and also denied having assaulted Lewis during the November 2013 incident at the hotel.
Moyer's sister testified that she had been on the phone with him on October 7, 2013, and she heard him exclaim, "Why did you hit me? Why did you hit me like that?" After the incident, Lewis called Moyer's sister, and would text with her "to see how Mr. Moyer was doing."
Moyer's father testified that he had never seen Moyer behave in an aggressive or violent manner. A former girlfriend provided similar testimony.
A defense toxicologist testified that he had not seen any evidence that proved that Lewis had been strangled. B. Procedural background
The Riverside District Attorney charged Moyer with one count of attempted murder (Pen. Code, §§ 664, 187; count 1); one count of inflicting corporal injury on a cohabitant (§ 273.5, subd. (a); count 2); one count of making a criminal threat (§ 422; count 3); one count of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count 4); one count of dissuading a witness (§ 136.1, subd. (c)(1); count 5); and one count of false imprisonment (§ 236; count 6).
Further statutory references are to the Penal Code unless otherwise indicated.
At the conclusion of the trial, the jury acquitted Moyer of the charge of attempted murder, but convicted him of the lesser included offense of attempted voluntary manslaughter (§§ 664,192, subd. (a)), as well as the remaining five charges.
The trial court sentenced Moyer to a term of eight years and four months in prison, which included three years for attempted voluntary manslaughter (count 1), one year for inflicting corporal injury on a cohabitant (count 2), eight months for making a criminal threat (count 3), three years for dissuading a witness (count 5), and eight months for false imprisonment (count 6). The trial court stayed punishment for Moyer's conviction for assault with force likely to cause great bodily injury, pursuant to section 654.
Moyer filed a timely notice of appeal from the judgment.
III.
DISCUSSION
A. The trial court's admission of Lewis's preliminary hearing testimony did not violate Moyer's right to confront witnesses
Moyer claims that the trial court violated his federal and state constitutional rights to confrontation by admitting Lewis's preliminary hearing testimony at trial after it was established that Lewis was unavailable to testify at trial. Moyer asserts that his counsel provided ineffective assistance with respect to the preliminary hearing because the attorney who appeared on his behalf and cross-examined Lewis at the preliminary hearing was specially appearing for Moyer's retained counsel and was not familiar with the case. Moyer further contends that the trial court's error in admitting Lewis's preliminary hearing testimony at trial was prejudicial and requires reversal of his convictions.
The People argue that Moyer forfeited his confrontation objections by failing to object on this ground in the trial court. In response, Moyer asserts that his newly retained attorney, who handled the trial in the case, rendered ineffective assistance by failing to object the admission of Lewis's preliminary hearing testimony on confrontation grounds.
1. Additional background
On the day of the preliminary hearing, Moyer's retained attorney, Anthony Brooklier, had another attorney, Gevork Chilingaryan, specially appear in his place. At the beginning of the hearing, the prosecutor informed the court that he had been in discussions with Attorney Brooklier prior to the date of the preliminary hearing. The prosecutor had informed Brooklier that if the case were to proceed to a preliminary hearing, the prosecution would amend the charging document to allege attempted murder, and would seek to have Moyer remanded to custody. The prosecutor mentioned that he had been in contact with Brooklier as recently as the day prior to the hearing, and had confirmed that "[Brooklier's] associate . . . would be ready to proceed with [the hearing] on all the charges [on which the prosecution was] planning to proceed."
Attorney Chilignaryan stated that he was "standing in for the attorney of record on this case," and indicated that it might "be best if the attorney of record were the one that did the preliminary hearing on this case," in light of the prosecution's intention to amend the charges. He added that he "literally got this file last night."
Attorney Chilingaryan indicated that Attorney Brooklier was in another state "on a federal case."
The prosecutor noted the People's desire to move forward with the hearing. The prosecutor noted that defense counsel had been in possession of the police report, and that it had been more than two years since the incident. In addition, the defense had not indicated a desire to seek a continuance after having been informed of the prosecutor's intent to amend the charging document to charge attempted murder. Most significantly, the victim was present for the hearing, and it had been difficult to get her to appear in court.
The court asked Attorney Chilingaryan whether he was "prepared to proceed today," and also inquired as to when Attorney Brooklier would be available. Attorney Chilingaryan requested that the court consider calling the matter last on the calendar so that he could contact Attorney Brooklier. The court agreed to do so.
When the case was called again, the court stated, "Mr. Moyer is present with counsel; People are present. [¶] Where are we now on the case?" Attorney Chilingaryan responded, "Your Honor, we're ready to proceed." The prosecutor indicated that the People were also ready to proceed.
The court then conducted the preliminary hearing. Attorney Chilingaryan cross-examined Lewis during the hearing.
A few months after the preliminary hearing, Attorney Brooklier was relieved as Moyer's attorney and a new attorney began representing Moyer. Approximately a month later, Moyer's new attorney filed a motion, pursuant to section 995, arguing that the information should be "set aside" due to ineffective assistance of counsel at the preliminary hearing, and also on the ground that there was insufficient evidence to hold Moyer to answer for attempted murder or any offense that involved an intent to commit great bodily injury. Moyer's attorney asserted that, among other issues, Attorney Chilingaryan had failed to "conduct a meaningful cross-examination of the alleged victim" at the preliminary hearing. In denying the section 995 motion, the trial court indicated that although it believed that Moyer had been "ill-served by his original attorney," the court could not conclude that Moyer had established that he had received ineffective assistance of counsel.
Before trial, the prosecutor sought a ruling from the court that Lewis was unavailable for trial so that the prosecution could present her preliminary hearing testimony at trial. The prosecutor proffered a copy of Lewis's death certificate and indicated that the parties "are willing to stipulate that she is indeed deceased." The court found that Lewis was unavailable, and the attorneys proceeded to argue about whether Lewis's preliminary hearing testimony should be admitted.
Before this hearing, Moyer's attorney had submitted a written objection to the prosecutor's motion to have Lewis's preliminary hearing testimony admitted at trial in view of her unavailability, arguing that the testimony was "improper hearsay" and that "Mr. Moyer cannot cross examine [the victim] in violation of the Sixth Amendment of the United States Constitution." (Underscore & some capitalization omitted.) Moyer's attorney highlighted the fact that the preliminary hearing requires a lower burden of proof than would be applicable at trial, and further noted that there had been no prior indication that the victim was going to be unavailable for trial, such that Moyer's attorney would have "see[n] no need to prepare let alone conduct, such trial ready cross examination."
During the attorneys' pretrial oral arguments regarding the admissibility of Lewis's preliminary hearing testimony, defense counsel noted that the attorney who had represented Moyer at the preliminary hearing "was not prepared to proceed at [a] preliminary hearing with a brand-new Amended Complaint at the time." Defense counsel also argued that "counsel who . . . conducted the cross-examination for preliminary hearing, they didn't have an opportunity to cross-examine the witness on the stand with this new evidence that this present counsel had come across, subsequent evidence as provided to us from the People, in addition to subsequent investigation that we have conducted ourselves that the previous counsel was not made aware of and did not have an opportunity to cross-examine as to the witness at the time." Defense counsel further suggested that the "motive" of counsel in examining Lewis at the preliminary hearing was different from that of counsel in questioning the victim at trial. Finally, defense counsel argued that jurors would be unable to see the victim's demeanor and responses, which would limit their ability to assess her credibility, and that "not being able to impeach her with her own statements . . . is a constitutional violation."
The trial court rejected defense counsel's contentions, explaining that "case law clearly supports allowing the evidence in," and noting that "[w]ith respect to the argument that the attorney didn't have the same motive for cross-examining . . . because of the additional [attempted murder] charge, it's apparent that counsel was on notice that that charge was going to be brought if the case did not settle. And again, even if he wasn't, the underlying facts -- it's not a separate charge that [was] put into the same Complaint, separate crime on a separate date. It's the same allegations factually as the allegations underlying the domestic violence." The court further explained that "the case [defense counsel] cited establishes that even if you don't have quite the same motive, it's sufficiently similar in the context of a preliminary hearing." The court proceeded to rule that Lewis's preliminary hearing testimony could be admitted in evidence.
At trial, Lewis's preliminary hearing testimony was read into the record.
2. Analysis
With respect to the People's contention that Moyer forfeited his claim that the admission of Lewis's preliminary hearing testimony at trial violated his confrontation rights, it is questionable whether Moyer's trial counsel's objections were insufficient to put the trial court on notice that Moyer was objecting to the admission of the preliminary hearing testimony on confrontation grounds, as well as on hearsay grounds. In pretrial motions, defense counsel objected to the admission of the preliminary hearing testimony based on a lack of opportunity to cross-examine Lewis "with this new evidence that this present counsel had come across," and because the cross-examination conducted at the preliminary hearing was inadequate. Later, defense counsel stated, "[W]e're no longer afforded the opportunity to confront [Lewis] with her inconsistencies" if the preliminary hearing testimony were to be admitted.
Notwithstanding any issues of forfeiture, however, and given that Moyer has raised an ineffective assistance of counsel claim with respect to any forfeiture, we will consider Moyer's arguments on the merits. (See People v. Williams (1998) 61 Cal.App.4th 649, 657 [court may "proceed to the merits of a claim" despite the possible forfeiture of that claim, in order to preclude a claim of ineffective assistance based on the failure to object].)
"A criminal defendant has a constitutionally guaranteed right to confront and cross-examine the witnesses against him or her. [Citations.] The right of confrontation is not absolute, however, and may 'in appropriate cases' bow to other legitimate interests in the criminal trial process. [Citations.] An exception to the confrontation requirement exists where the witness is unavailable, has given testimony at a previous judicial proceeding against the same defendant, and was subject to cross-examination by that defendant. (Crawford v. Washington (2004) 541 U.S. 36, 59; Barber v. Page [1968] 390 U.S. [719,] 722; accord People v. Wilson (2005) 36 Cal.4th 309, 339-348; People v. Stritzinger (1983) 34 Cal.3d 505, 515; see also California v. Green (1970) 399 U.S. 149, 167-168 [where a defendant has had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is deemed sufficiently reliable to satisfy the confrontation requirement].) Further, the federal Constitution guarantees an opportunity for effective cross-examination, not a cross-examination that is as effective as a defendant might prefer. [Citation.]" (People v. Carter (2005) 36 Cal.4th 1114, 1172 (Carter), italics added.)
California allows for the use of the prior testimony of a witness against a defendant only when it has been established that the witness is unavailable and the testimony is deemed reliable. (§ 686; Evid. Code, § 1291, subd. (a)(2).) A witness is unavailable if he or she is deceased. (Evid. Code, § 240, subd. (a)(3).) Testimony is deemed reliable if "[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." (Id., § 1291, subd. (a)(2).)
" 'The "[a]dmission of the former testimony of an unavailable witness is permitted under Evidence Code section 1291 and does not offend the confrontation clauses of the federal or state Constitution—not because the opportunity to cross-examine the witness at the preliminary hearing is considered an exact substitute for the right of confrontation at trial [citation], but because the interests of justice are deemed served by a balancing of the defendant's right to effective cross-examination against the public's interest in effective prosecution." ' " (Carter, supra, 36 Cal.4th at pp. 1172-1173, quoting People v. Zapien (1993) 4 Cal.4th 929, 975.) In addition, although " 'a defendant's motive in cross-examining a witness at a preliminary hearing may differ somewhat from the motive at trial, . . . nevertheless the earlier testimony may be admissible at the trial under section 1291 because the "motives need not be identical, only 'similar.' " ' " (Carter, supra, at p. 1173.)
The argument that Moyer raises on appeal—i.e., that because he received ineffective assistance of counsel at his preliminary hearing, his confrontation clause rights were violated by the trial court's admission of the unavailable victim's preliminary hearing testimony at trial—has been rejected by the California Supreme Court in Carter, supra, 36 Cal.4th at pages 1173-1174. The defendant in Carter raised the same argument that Moyer makes here, claiming that the admission of an unavailable witness's preliminary hearing testimony at trial violated his "right of confrontation [under the state and federal Constitutions], because defense counsel's brief cross-examination [at the preliminary hearing] constituted incompetent representation." (Id. at p. 1173.)
The Supreme Court disagreed with the defendant's contention, reiterating that " 'as long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective.' " (Carter, supra, 36 Cal.4th at pp. 1173-1174, italics added.) Just as it was undisputed that the witness whose testimony was at issue in Carter was deceased and thus unavailable, it is undisputed that at the time of trial, Lewis was deceased and was thus unavailable. Lewis's testimony at the preliminary hearing, where Moyer had an interest and motive to cross-examine her similar to his motive and interest at the trial, was therefore properly admissible. Thus, the trial court did not violate Moyer's federal or state confrontation clause rights in permitting the prosecution to introduce that testimony against him at trial. (See ibid.) B. Substantial evidence supports the trial court's determination that separate punishment was warranted under section 654 with respect to count 3
Moyer contends that the trial court should have stayed execution of his sentence on count 3 under section 654 because, he maintains, he committed that crime and the offense of attempted voluntary manslaughter (count 1) pursuant to a single course of conduct and a single criminal intent.
Section 654 provides in relevant part: "(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"The purpose of the protection against multiple punishment is to [e]nsure that the defendant's punishment will be commensurate with his criminal liability." (Neal v. State of California (1960) 55 Cal.2d 11, 20 (Neal).) In Neal, the Supreme Court interpreted the statutory prohibition contained in section 654 to apply to cases in which a defendant engages in an indivisible course of conduct with a single objective that violates several different penal statutes. (See Neal, supra, at p. 19.)
However, even if a course of conduct is " 'directed to one objective,' " it may " 'give rise to multiple violations and punishment' " if it is " 'divisible in time.' " (People v. Deegan (2016) 247 Cal.App.4th 532, 542, quoting People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11.) "This is particularly so where the offenses are temporally separated in such a way as to afford the defendant [an] opportunity to reflect and renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken." (People v. Gaio (2000) 81 Cal.App.4th 919, 935 (Gaio).)
In reviewing the trial court's finding that section 654 does not apply, we determine only whether there is substantial evidence to support the court's finding. (See People v. Osband (1996) 13 Cal.4th 622, 730-731.)
There is substantial evidence from which the trial court could have found that Moyer committed the offense of making a criminal threat after he committed the offense of attempted voluntary manslaughter. Specifically, the offense of attempted voluntary manslaughter was based on "the strangulation on the bed where [the victim] had to use the candle to get him off of her." The criminal threat offense was based on Moyer's utterance to Lewis, after he had retreated to the kitchen, obtained a knife, asked her to stab him, and then initiated a new attack, stating that he was going to kill her. There is thus evidence from which the trial court could have reasonably found that the crimes were temporally distinct, in that after Moyer had initially tried to strangle Lewis, he had time to reflect on his actions prior to threatening to kill her during a separate attack. Accordingly, the trial court was not required to stay execution of the sentence on count 3 pursuant to section 654. (See Gaio, supra, 81 Cal.App.4th at p. 935 [stating that, under section 654, temporally distinct crimes may be punished separately even where they share the same objective].)
Moyer argues that because the prosecutor used the evidence of his criminal threat to establish the element of intent with respect to the attempted murder charge, he must have been acting pursuant to the same criminal intent in committing both crimes, requiring application of section 654. Again, even presuming that the "intent" to which Moyer refers is the same as a "criminal objective" for purposes of section 654, it is clear from Gaio, supra, 81 Cal.App.4th at page 935 that even where a defendant commits two offenses pursuant to the same objective, if those offenses are temporally distinct, they may be punished separately under section 654.
Further, we question Moyer's contention that the attempted voluntary manslaughter and the later criminal threat were committed pursuant to a single intent or objective. Attempted voluntary manslaughter requires the prosecution to prove that the defendant harbored an intent to kill based on provocation (§ 192, subd. (a)), while a criminal threat charge requires that the prosecutor prove that the defendant willfully threatened to kill or seriously injury the victim with the specific intent that the statement be taken as a threat (§ 422). These two offenses clearly involve different intents. The fact that the commission of one of the offenses was used as evidence of the defendant's intent to commit the other offense does not prohibit separate punishments for the two offenses, particularly, where, as here, the defendant had an opportunity to reflect on his conduct before engaging in the second offense.
We conclude that there is substantial evidence to support the trial court's decision not to stay execution of Moyer's sentence on count 3 pursuant to section 654.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: HALLER, Acting P. J. O'ROURKE, J.