Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. CF06904052-8 James R. Oppliger, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Kane, J., and Detjen, J.
A jury found appellant, Gabriel Olivas, guilty of carjacking (Pen. Code, § 215, subd. (a), count 1); false imprisonment with violence (§§ 236/237, count 2); spousal abuse with a prior (§ 273.5, subd. (e), count 3); criminal threats (§ 422, count 4); spousal rape (§ 262, subd. (a)(1), count 5); forcible oral copulation (§ 288a, subd. (c)(2), count 6); second degree robbery (§ 211, count 7); misdemeanor disobeying a domestic relations court order (§ 166, subd. (a)(4), count 8), and misdemeanor resisting a peace officer (§ 148, subd. (a)(1), count 9). The trial court sentenced appellant to a prison term of 58 years to life composed of an indeterminate term of 50 years to life (two consecutive terms of 25 years to life pursuant to § 667.61 on count 5 (spousal rape) and count 6 (forcible oral copulation)), plus a determinate term of eight years. The eight years included five years for carjacking (count 1), one year four months for spousal abuse with a prior (count 3), and enhancements totaling one year eight months for infliction of great bodily injury (§ 12022.7, subd. (e)), and personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)) in the commission of the spousal abuse. Sentences on the remaining counts and enhancements were either stayed or ordered to run concurrently.
All further statutory references are to the Penal Code, unless otherwise stated.
Following Olivas’s timely appeal on August 13, 2009, in an unpublished opinion, this court found that the trial court erred in sentencing appellant on counts 5 and 6 (spousal rape and forcible oral copulation) under a version of section 667.61 that was not in effect when Olivas committed the offenses underlying those counts. We also remanded the matter for resentencing under the applicable version of section 667.61.
At a resentencing hearing on December 10, 2009, the trial court sentenced Olivas to an aggregate term of 39 years 4 months consisting of an indeterminate term of 25 years to life on Olivas’s spousal rape conviction (count 5) and an aggregate determinate term of 14 years 4 months on his remaining convictions. The determinate term of 14 years 4 months was composed of the midterm of 6 years on Olivas’s forcible oral copulation conviction, a 4-year arming enhancement in that count, a consecutive 20-month term on his carjacking conviction (count 1), a consecutive 16-month term on his corporal injury to a spouse conviction, a consecutive 16-month term on the great bodily injury enhancement in that count, and concurrent or stayed terms on the remaining counts and enhancements.
On appeal, Olivas contends the court violated section 654’s proscription against multiple punishment when it imposed a term of one year eight months on his carjacking conviction. We will affirm.
FACTS
Olivas and the victim were married in April 1997. The victim had a son with Olivas who was eight years old at the time of trial and a daughter from a previous relationship. In 2004, Olivas was unemployed and drinking heavily when he threw the victim to the floor during an argument. He subsequently pled guilty to a misdemeanor count of spousal abuse. Afterwards, their relationship continued to deteriorate. In December 2005, after the victim told him she wanted a separation, Olivas became furious and moved out of the home. In January 2006, the victim got a restraining order against Olivas.
In late May 2006, the victim saw Olivas driving near her workplace. On May 30, 2006, after work, the victim asked a coworker to drive her Jeep Cherokee to the front of the business because she feared Olivas would accost her. The coworker agreed and saw Olivas sitting in a car parked near the victim’s Jeep.
On May 31, 2006, Olivas followed the victim home in his car and drove it in front of her Jeep, causing her to stop. Olivas got out of the car and told the victim to wait, but she drove off when Olivas went to get something out of his trunk.
On June 6, 2006, when the victim arrived in her Jeep for her 5:00 a.m. shift, Olivas approached her window holding a tire iron and told her to lower the window or he would break it. The victim partially rolled down the window allowing Olivas to reach in, open the door, and force himself into the car. As Olivas drove off, the victim made a futile attempt to escape and yelled out for help as she leaned out the front passenger’s window.
Olivas warned the victim that if she tried to escape, he would have a friend take her children. He drove around for approximately 20 minutes before stopping the Jeep on the side of the road. Olivas then forced the victim to the back seat by pulling her hair, hitting her, and brandishing a box cutter with an exposed blade. During a struggle in the back seat, Olivas cut the victim on the jaw and on her right hand. Olivas then allowed the victim to get back in the front passenger seat and he drove onto Highway 99.
Olivas began accusing the victim of having a boyfriend and told her that he would not allow her to go home until she told him the truth. Eventually, he drove off Highway 99 and parked in an alley at an industrial park. He then moved the victim to the back seat where he used some bandannas to tie the victim’s arms behind her back and to blindfold and gag her before raping her. The victim acquiesced to Olivas’s demands because she feared he would cut her again.
Olivas next drove to a location near some factories, parked the Jeep again, and began rummaging through the victim’s purse. He picked up the tire iron from the floorboard and told the victim that if he found any birth control pills or photos of her boyfriend in her purse, he would hit her with it. He also took the victim’s wallet from her hands and removed $150. Olivas eventually drove to another location where he again ordered the victim to get in the back seat. Olivas tied the victim’s hands behind her back and forced her to orally copulate him.
After driving back onto Highway 99, Olivas kept asking the victim if she had a boyfriend and he told her that he would take her to a hospital if she told him the truth. Olivas then pulled off the freeway into a liquor store parking lot where he took the victim’s car keys and cell phone. However, when Olivas got out of the Jeep, the victim used a spare key to start the car and drive off. Olivas grabbed onto the passenger window and hung on as the victim drove to a gas station where she ran inside and sought help.
The victim was taken to a hospital where she received two or three stitches for the cut on her jaw and four stitches for the cut on her hand. Olivas was arrested on June 8, 2006, by Fresno police officers.
During the incident, the victim’s daughter called her several times. During one call, the daughter overheard Olivas telling the victim, “I still love you and if I can’t have you, no one else can.”
DISCUSSION
Olivas contends that the carjacking was the “incidental means” to commit the forcible sex offenses he was convicted of. Thus, according to Olivas, the court violated section 654’s prohibition against multiple punishment when it imposed a consecutive term of 20 months on his carjacking conviction in count 1. We disagree.
Section 654, in pertinent part, 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 provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” (§ 654, subd. (a).)
“‘Under section 654, “a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]” [Citations.] This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. [Citation.]’ [Citation.]
“The defendant’s intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence. [Citation.] ‘We review the court’s determination of [a defendant’s] “separate intents” for sufficient evidence in a light most favorable to the judgment, and presume in support of the court’s conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence. [Citation.]’ [Citation.]” (People v. Andra (2007) 156 Cal.App.4th 638, 640-641, italics added.)
Here, Olivas had ample time to reflect on his conduct between the time he carjacked the victim in her car and the time that he first assaulted the victim, and between each sexual assault. Therefore, the court was justified in imposing multiple punishment on Olivas’s carjacking and sex offenses. (Cf. People v. Ratcliffe (1981) 124 Cal.App.3d 808, 819 [section 654 did not bar imposing punishment on kidnapping and sex offenses where the defendant had multiple criminal objectives for kidnapping the victim]; People v. Surdi (1995) 35 Cal.App.4th 685, 689-690 [defendant properly punished for kidnapping and “multiple stabbing episodes, each of which evinced a separate intent to do violence, [which] preclude[d] application of section 654 with respect to the offenses encompassed within the episodes”].)
Further, although the trial court did not consider section 654’s applicability to Olivas’s carjacking conviction because the parties did not raise the issue, when imposing a consecutive 20-month term on this conviction, the court stated:
“In this particular case I also don’t think that, even though [Olivas]’s mindset might have been geared towards a common goal from the victim’s point of view and from society’s point of view, this was a crime that was motivated by power, humiliation and punishment. It was [to] punish the victim, humiliate the victim and exercise power and control over the victim. It involved separate acts for which there should be separate punishments, particularly because the separate types of sexual behavior under the guise of power, control, humiliation and punishment result[] in a [more] complete and harsher victimization of the victim. And it is clear[] such conduct deserves, and the law allows it to be punished separately and consecutively and so the court does.”
“A broad and amorphous intent and objective, such as a desire for sexual gratification or the desire to accumulate wealth, cannot preclude multiple punishment for separate offenses. [Citation.] ‘To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute’s purpose to insure that a defendant’s punishment will be commensurate with his culpability.’ [Citation.] Rather, we must ‘give heed to an accused’s objectives when they can be ascertained.’ [Citation.] We must focus on the factors that made the conduct criminal to determine whether defendant had multiple criminal intents or objectives. [Citation.] If defendant had more than one criminal intent or objective, he [may be punished for each offense even though they were committed incident to one broad and amorphous objective].” (People v. Atencio (2010) 190 Cal.App.4th 695, 703.)
Here, the first time Olivas got the victim into the back seat, he assaulted her with a knife but did not sexually assault her. Thereafter, he kept insisting that the victim tell him who her boyfriend was and he refused to take her to receive medical treatment until she did. Olivas also rummaged through the victim’s purse trying to find evidence that she had a boyfriend and he took $150 from her. Further, Olivas told the victim that if he could not have her, nobody could. These circumstances support the trial court’s conclusion that in committing the carjacking and sexual offenses Olivas had multiple objectives that were part of a greater scheme to exert power and control over the victim and to punish and humiliate her because he believed she was involved in another relationship.
Olivas cites the following cases in support of his contention that the court violated section 654’s prohibition against multiple punishment by its failure to stay the term it imposed on his carjacking offense: People v. Latimer (1993) 5 Cal.4th 1203, People v. Panky (1978) 82 Cal.App.3d 772, People v. Rocco (1971) 21 Cal.App.3d 96, People v. Jaquette (1967) 253 Cal.App.2d 38, and People v. Nelson (1965) 233 Cal.App.2d 440. In each of these cases, the victim or victims were kidnapped and subjected to one or more episodes of sexually assaultive conduct. In each case, the reviewing court held that section 654 prohibited imposition of punishment on the kidnapping offense. (People v. Latimer, supra, 5 Cal.4th at pp. 1216-1217, People v. Panky, supra, 82 Cal.App.3d at pp. 783-784, People v. Rocco, supra, 21 Cal.App.3d at pp. 109-110, People v. Jaquette, supra, 253 Cal.App.2d at p. 49, and People v. Nelson, supra, 233 Cal.App.2d at pp. 445-446.) These cases, however, are distinguishable because in none of them did the record support a conclusion that the defendant had any objective other than to kidnap the victim or victims to sexually assault them. Here, as discussed above, the record supports the trial court’s conclusion that Olivas had multiple objectives when he carjacked the victim’s car.
The cases relied on by Olivas are also distinguishable because in none of them did the reviewing court consider whether the defendant had the opportunity to reflect on his conduct between the time he committed the kidnapping offense and the sex offenses. Accordingly, we conclude that the court did not violate section 654’s ban on multiple punishment when it imposed a 20-month term on Olivas’s carjacking conviction in count 1.
DISPOSITION
The judgment is affirmed.