Opinion
E065206
11-13-2017
THE PEOPLE, Plaintiff and Respondent, v. STEVE VERDIN, Defendant and Appellant.
Renee Rich, 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, Barry Carlton and Heidi Salerno, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. RIF1312267 & RIF1102961) OPINION APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed as modified. Renee Rich, 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, Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Steve Verdin broke into his ex-girlfriend's apartment in the middle of the night and assaulted his ex-girlfriend with a baseball bat. Defendant also viciously assaulted his ex-girlfriend's boyfriend with a baseball bat and with a knife. Following a jury trial, defendant was convicted of one count of attempted murder of John Doe (Pen. Code, §§ 664/187, subd. (a); count 1); two counts of assault with a deadly weapon upon John Doe, to wit, with a knife and a baseball bat (§ 245, subd. (a)(1); counts 2 & 3); inflicting corporal injury on Jane Doe (§ 273.5, subd. (a); count 4); and first degree burglary (§ 459; count 5). The jury also found true that defendant personally inflicted great bodily injury in the commission of counts 2 and 4 under circumstances involving domestic violence (§ 12022.7, subd. (e)) and that another person was present during the commission of the burglary offense (§ 667.5, subd. (c)(21)).
All future statutory references are to the Penal Code unless otherwise stated.
The jury found not true the allegations that the attempted murder was willful, deliberate, and premeditated and that defendant inflicted great bodily injury upon John Doe (§ 12022.7, subd. (e)) in the commission of count 1.
In a bifurcated proceeding, the trial court found true that defendant had suffered one prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and one prior serious felony conviction (§ 667, subd. (a)). As a result, defendant was sentenced to a total term of 30 years four months in state prison with 892 days' credit for time served as follows: the upper term of nine years doubled to 18 years due to the prior strike on count 1; a consecutive term of two years on count 4, plus a consecutive term of two years eight months for the great bodily injury enhancement attached to count 4; a consecutive term of two years eight months on count 5; and a consecutive term of five years for the prior serious felony conviction. Defendant's sentence on counts 2 and 3 and the enhancement attached to count 2 were stayed pursuant to section 654.
On appeal, defendant argues multiple convictions on counts 2 and 3 for assault with a deadly weapon on John Doe were prohibited by section 954 because the charges on counts 2 and 3 were different statements of the same offense based on the same course of conduct. Defendant also asserts that the trial court erred in failing to stay his sentence on count 5 for residential burglary pursuant to section 654. We agree with the parties that defendant's sentence on count 5 should have been stayed, but reject defendant's remaining contention.
We modify the judgment to stay defendant's two-year eight-month term on count 5 pursuant to section 654. In all other respects, we affirm the judgment.
II
FACTUAL BACKGROUND
A. Defendant's Prior Uncharged Attacks on Jane
Defendant and Jane began dating when Jane was 14 years old. They moved in together when Jane was four months pregnant and had her first child with defendant when she was 18 years and their second child a few years later. Defendant, Jane, and their children lived together for approximately three years and had an on-again, off-again relationship.
When their first-born child was six months old, defendant became violent toward Jane. The first time defendant was violent, he pushed Jane. The second time he kicked Jane out of their bed and then kicked her again in her backside while she was on the ground. The third time defendant pushed her breasts after she had breast surgery.
When Jane was pregnant with their second child in 2010, defendant pushed her twice. On another occasion, he grabbed her phone out of her hand and ripped off one of her acrylic nails. When their second child was two months old, Jane left defendant and moved in with roommates.
B. Defendant's Prior Assault on Jane's Former Boyfriend
Jane dated Oscar O. for several months in 2011. Oscar had never met defendant. On June 25, 2011, Oscar was lying with Jane on her couch in her house when, at approximately 9:00 a.m., defendant knocked on the door. When Jane got up and looked out the window, defendant saw Oscar. Jane started to open the front door and defendant, while holding their daughter's hand, pushed his way inside past Jane. He walked over to Oscar, without warning or saying a word, and kicked Oscar at least six times to his body and head. Defendant eventually stopped kicking Oscar, and went outside where he damaged Oscar's car by climbing on to the roof, damaging the roof and breaking the front windshield.
Jane took Oscar into the bathroom because his nose was bleeding. Defendant then went back inside and into the bathroom where he punched Oscar more than 10 times in the face. He punched Oscar in the nose three times, breaking his nose. He also punched Oscar in the head four or five times, causing large bumps to the back of his head and a black eye. Shortly after defendant beat him, Oscar fell to the ground, had a seizure, and lost consciousness. Oscar was taken to the hospital by ambulance.
A few months later, Oscar and Jane broke up. Jane asked Oscar not to prosecute defendant because she did not want defendant to get into trouble since their children loved their father. Oscar had to go to the doctor 30 to 40 times for his nose because it continued to dislocate. On September 6, 2011, defendant pled guilty to assault with force likely to cause great bodily injury and admitted the allegation that he personally caused great bodily injury.
After the assault on Oscar, between 2011 and 2013, defendant and Jane resumed their on and off dating relationship. Jane also dated other men and told defendant about them. Defendant did not want Jane to be in a serious relationship with anyone else. Defendant and Jane continued to have a turbulent relationship with defendant continuing to control Jane.
C. Current Incident
Jane started dating John Doe in the summer of 2013. She and defendant had many arguments about her dating John and John smoking marijuana in front of defendant's children. In September 2013, defendant drove by John's house at 8:00 p.m. with their children in the car and demanded that Jane get in the car to leave with them. Jane had never told defendant where John lived. In October 2013, Jane had John help her change her locks because defendant had a key to her residence. In mid-October 2013, Jane and John broke up and Jane gave defendant a key to her apartment.
In October 2013, Jane and defendant were on good terms and went to two parties together. The next week, however, they had a falling out after defendant told someone in Jane's family that she was working as a stripper.
On October 26, 2013, Jane and defendant argued about parental responsibilities because they both wanted to go to the same party and someone needed to watch their children. At 1:09 p.m., defendant texted Jane, " 'Have a surprise for you. Can I give it to you late[r]?' " Soon after, defendant texted Jane, " 'So that's a no then.' " At 3:04 p.m., defendant texted Jane, " ' Hello. What? Did your BF get there that you hung up right away?' " Jane responded, " 'No. I just don't want to talk to you.' " At 3:07 p.m., defendant texted Jane, " 'So what's your BF name now?' " Jane had not told defendant that she had gotten back together with John but he knew she was with a man. At 5:22 p.m., defendant texted Jane, " 'Why did you hang up?' " Defendant made several calls to Jane between 7:00 p.m. and 8:43 p.m.
Later that evening at 11:00 p.m., Jane went to the party and saw defendant. According to Jane, they stayed away from each other and did not speak to each other. Defendant had gone to the party with his friend Eduardo G. Defendant was wearing a long-sleeved, gray, button-down shirt. Around 2:20 a.m., defendant dropped Eduardo off at Eduardo's home and drove away.
Around 1:00 to 2:00 a.m., Jane left the party to go pick up John who was at a different party. She left without saying goodbye to anyone at the party. According to John, Jane was upset when she picked him up because she had gotten into a fight with defendant at the party. John heard Jane on the phone with defendant and heard defendant yell at her that she was a bad mom and he was going to try to take her children from her. John and Jane obtained some food and went to Jane's apartment. They ate the food in bed while watching a movie.
At 1:34 a.m., defendant sent Jane a text message saying " 'answer.' " A few minutes later, he sent her a second message asking if he could come over, to which Jane responded " 'No.' " Jane did not remember looking at her phone after that. She did not recall seeing defendant's text message at 1:47 a.m., which stated " 'I'm sure you're not even going to go home' " or the text message he sent at 2:53 a.m. saying, " 'Hope you have gun [sic] with [John].' " Defendant called Jane around nine times in 12 minutes, between 1:31 a.m. and 1:43, even as he texted her.
Eventually, John and Jane turned off the lights and were in bed talking. Jane was naked and John was wearing his underwear. Ten minutes later, immediately after defendant texted about the gun, he broke into Jane's home and opened her bedroom door with a bat raised over his head. Jane screamed, "Steve [defendant], no. No, don't." Without saying a word, defendant attacked Jane and John with his baseball bat. He swung the bat at John's head. Jane threw her body over John's body to block the bat as it was coming down onto John's head. She took the impact of the bat on her arm. Defendant immediately hit Jane with the bat three times in rapid succession. He hit her in the arm, her fingers, and her foot. John jumped out of bed to try to get the bat away from defendant. Defendant turned and hit John with the bat multiple times in the forearm and shoulder on both sides of his body. Defendant's bat swings also contacted and damaged the walls. John grabbed at the bat and he and defendant struggled, fighting over the bat. The bat was between the two men, horizontal to the ground and about shoulder height.
John pushed defendant out of the bedroom, and the two men struggled through the dining room, and into the kitchen where John pinned defendant by the chest with the bat against the refrigerator. Defendant grabbed a knife out of the cutting block on the counter next to the refrigerator and stabbed John in the head. Defendant also punched John in the temple. John spun their bodies around, causing the knife to fly out of defendant's hands. They continued to struggle with the bat into the living room, running into the couch and knocking over boxes. During the struggle, John picked up defendant and threw him to the ground. John also hit defendant in the face with the bat. Eventually, John pinned defendant to the ground with the bat up against defendant's chest. Meanwhile, Jane laid in bed, yelling and crying.
After about 10 seconds, defendant spoke for the first time and said he wanted to get up and apologize to Jane. John released him. Defendant went to the bedroom, said, " 'I'm sorry' " to Jane and ran out. On his way out, defendant tried to grab his bat out of John's hands. John yanked it back, "cocked" it and said, " 'Get the f--- out.' " John checked on Jane, went to the bathroom, and told Jane he was going to call 911. Jane asked John not to call 911 because she did not want defendant to get into trouble. She told John not to tell the police defendant had attacked them because he had her children. At 3:05 a.m., John called 911.
Jane was in so much pain all over her body she could not get out of bed. The blows by the bat had ripped off three of Jane's acrylic nails. In addition, she was bleeding from her arm and her foot was red and swollen. Paramedics arrived and took John and Jane to the hospital by ambulance.
At the hospital, Jane was distressed. She was uncooperative with hospital staff and the police. Jane did not want defendant to get into trouble. As a result of defendant's attack, Jane had to use crutches for her sprained ankle, had to get three stitches on her arm, and had bruising. John's face was very swollen, he had a black eye, and bruising on his arm and shoulder. His black eye lasted for three weeks, and he had to get 13 to 15 stitches to his temple, which left a scar. After the incident, John began suffering from painful headaches once to twice a day.
Law enforcement officers located and detained defendant at approximately 4:00 a.m. Defendant's forehead was red and swollen and there was a small cut on his lip. There was no blood on his hands or arms and his face was not bleeding. However, there was a light red stain on the front of defendant's jeans, which tested positive for possible blood in a presumptive test. A softball and a glove were found in defendant's car, but no bat. Defendant asked why he was in a police car. He claimed that he had been at a party where he ran into and argued with his ex-girlfriend who was " ' cracked out.' " He also said that she left and then he left and that he had just dropped off his friend Ed.
III
DISCUSSION
A. Section 954
Defendant was charged with and convicted of two counts of assault with a deadly weapon on John, to wit, a knife (count 2), and a bat (count 3). Defendant argues that his two convictions for assault with a deadly weapon were prohibited by section 954 because the charges were different statements of the same offense based on the same course of conduct and that he should have been convicted of only one assault on John.
As a general rule, "a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (People v. Reed (2006) 38 Cal.4th 1224, 1226; § 954 ["[a]n accusatory pleading may charge . . . different statements of the same offense . . . [and] the defendant may be convicted of any number of the offenses charged"].) In California, a single act or course of conduct by a defendant can lead to convictions of any number of the offenses charged. (§ 954; People v. Ortega (1998) 19 Cal.4th 686, 692; People v. Montoya (2004) 33 Cal.4th 1031, 1034.)
Our Supreme Court has explained: "[S]ection 954 provides: 'An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts . . . . The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged . . . .' We have repeatedly held that the same act can support multiple charges and multiple convictions. 'Unless one offense is necessarily included in the other [citation], multiple convictions can be based upon a single criminal act or an indivisible course of criminal conduct (§ 954).' [Citation.] Section 954 thus concerns the propriety of multiple convictions, not multiple punishments, which are governed by section 654." (People v. Gonzalez (2014) 60 Cal.4th 533, 536-537 (Gonzalez).) The California Supreme Court has recently ruled that although section 954 allows a defendant to be charged with multiple "different statements of the same offense," it does not permit multiple convictions for those different statements of the same offense. (People v. Vidana (2016) 1 Cal.5th 632, 649-651 (Vidana).)
Where the issue is whether multiple convictions are proper under section 954, the standard of review is de novo. (People v. Villegas (2012) 205 Cal.App.4th 642, 646.)
Having thoroughly reviewed the trial record, we determine that the convictions on counts 2 and 3 are proper under section 954. Defendant engaged in two different offenses based on two different offenses connected together in their commission. Defendant first assaulted John with a bat in Jane's bedroom. John then grabbed the bat from defendant and the two men struggled over the bat. During the struggle, John pushed defendant out of the bedroom, and the two men fought through the dining room, and into the kitchen where John pinned defendant by the chest with the bat against the refrigerator. Defendant then grabbed a knife out of the cutting block on the counter next to the refrigerator and stabbed John in the head with the knife. Defendant has not argued that either counts 2 or 3 constitute a lesser included offense. Therefore, even if these acts are considered to be an indivisible course of conduct, the multiple convictions are nevertheless proper under section 954. (Gonzalez, supra, 60 Cal.4th at pp. 536-537.)
Relying on Vidana, supra, 1 Cal.5th 632, defendant argues he was wrongly charged on two different statements of the same offense based on the same course of conduct. In Vidana, the California Supreme Court determined whether section 954 prohibits multiple convictions of embezzlement and larceny involving the same offense. The court held: "Section 954 defines three categories of charges that can be joined in one action: 'different offenses connected together in their commission,' 'different statements of the same offense,' and 'different offenses of the same class of crimes or offenses.' (Italics added.) In the next sentence, however, section 954 sets forth the charges of which the defendant may be convicted, providing, 'The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged . . . .' (Italics added.) The language 'offenses charged' is reasonably read to refer back to the use of the word 'offenses' in the phrases 'different offenses connected together in their commission' and 'different offenses of the same class of crimes or offenses.' It is not reasonably read as referring back to the word 'offense' in the singular as in the phrase 'different statements of the same offense.' " (Vidana, at p. 650.) The court further explained: "The most reasonable construction of the language in section 954 is that the statute authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct." (Vidana, at p. 650, citing People v. Coyle (2009) 178 Cal.App.4th 209, 211, 217-218 [defendant improperly convicted of three counts of murder for killing one person].)
This case is distinguishable from Vidana. In the present matter, defendant was not charged with two different statements of the same offense, as the defendant was in Vidana. Rather, defendant engaged in two different offenses based on two separate acts connected together in their commission. First, defendant assaulted John with a bat. Second, he assaulted John with a knife. The two assaults were connected together in their commission given that after defendant assaulted John with a bat, both men struggled for the bat, and continued to struggle in the kitchen where defendant grabbed a knife and stabbed John in the head with a knife. The two offenses were not, as defendant contends, different statements of the same interchangeable offense. Because they were two different offenses connected together in their commission, section 954 authorized the multiple convictions.
In People v. Johnson (2007) 150 Cal.App.4th 1467 (Johnson), the defendant was convicted of three counts of corporal injury on a cohabitant arising from a single incident in which he hit a woman with whom he was living on the nose, eyes, and mouth; choked her and held her by her throat against the wall and struck her on the neck, arm, lower back and leg; and stabbed her in the left arm. (Id. at p. 1471.) The Johnson court rejected the defendant's claim that multiple convictions were improper under section 954 because his conduct constituted a single continuous assault. The court found that "the crime described by section 273.5 is complete upon the willful and direct application of physical force upon the victim, resulting in a wound or injury. It follows that where multiple applications of physical force result in separate injuries, the perpetrator has completed multiple violations of section 273.5." (Johnson, at p. 1477.) As a result, the Johnson court concluded that the evidence supported three separate convictions for a violation of section 273.5 consisting of one offense when defendant beat the victim, another when he held her by the throat, and a third when he stabbed her arm. (Johnson, at p. 1477.)
In People v. Harrison (1989) 48 Cal.3d 321 (Harrison), the defendant was convicted of three counts of forcible acts of sexual penetration (§ 289). (Harrison, at p. 324.) The defendant argued "that multiple digital penetrations, committed during a brief 'continuous' assault upon a struggling victim, constitute only a single violation of section 289." (Id. at p. 327.) The Harrison court focused on the conduct minimally necessary to result in a conviction. Though the statute did not specify what constituted a completed crime, Harrison discussed related sex crimes statutes and concluded that "a new and separate violation of section 289 is 'completed' each time a new and separate 'penetration, however slight,' occurs." (Id. at pp. 329, italics omitted.) Thus, the Harrison court concluded that multiple convictions were warranted. (Id. at p. 334.)
Here, as Johnson and Harrison illustrate, under section 954, defendant's charge and conviction of two counts of assault upon John is permissible. We reject defendant's attempts to persuade this court that the reasoning in Johnson and Harrison do not extend to the crime of assault or that the California Supreme Court's decisions in People v. Correa (2012) 54 Cal.4th 331 (examining section 654) and Vidana, supra, 1 Cal.5th 632 undermine Johnson's holding.
Defendant, relying on various inapposite authorities, claims he could be convicted of only one assault when multiple weapons are used during a continuous assault. He relies on People v. Oppenheimer (1909) 156 Cal. 733, 739-740 (Oppenheimer), People v. Mitchell (1940) 40 Cal.App.2d 204, 211 (Mitchell), and People v. Jefferson (1954) 123 Cal.App.2d 219, 220-221 (Jefferson). Preliminarily, both Oppenheimer and Mitchell were decided long before the rules regarding continuous course of conduct and independent objectives were formulated and, as such, neither case had occasion to discuss these rules.
In Oppenheimer, supra, 156 Cal. 733, the defendant took an iron window weight from his cell and escaped with it. (Id. at pp. 736-737.) He then went to the prison dining room and attacked another inmate who was cutting bread by hitting the inmate on the head with the window weight, grabbing the knife from the inmate, and stabbing him several times. (Ibid.) Oppenheimer observed, "We think it is manifest that there was but a single assault shown by this evidence . . . . The mere fact that two weapons are used does not necessarily show two assaults. . . . The evidence . . . in this case tended to show one continuous transaction, one assault in which two weapons were used." (Id. at p. 740.) The defendant in Oppenheimer was charged with and convicted of a single count of assault, and the issue on appeal was whether the evidence supported the crime as charged and proved. (Id. at pp. 739-740.) The Supreme Court answered that question affirmatively. (Id. at p. 740.) Here, by contrast, defendant was charged with and convicted of two assaults, and substantial evidence supports both convictions. The fact that two closely related attacks can be characterized as a single assault does not support the conclusion that two more separate and distinct attacks must be charged as a single assault.
Similarly, in Mitchell, supra, 40 Cal.App.2d 204, the defendant attacked the victim by hitting him on the head, and a very short time later attacked the victim again, using a beer bottle to strike the victim on the side of the head. (Id. at p. 207.) The defendant complained his conviction for two assaults violated the double jeopardy clause of the California Constitution. (Id. at p. 210.) The Mitchell court, citing Oppenheimer, rejected this contention, finding "there was in fact but a single assault." (Id. at p. 211.) "The evidence concerning the blow struck by [the defendant] with his fist was merely testimony regarding a portion of a transaction which culminated in the assault with the bottle. . . . There was but one assault, although two blows, one with the fist and one with a bottle, were struck." (Ibid.)
Mitchell is not controlling here because we are not faced with a double jeopardy issue. Furthermore, as we have explained above, the fact that a defendant who inflicts more than one blow can be charged with and convicted of a single assault does not compel the conclusion that a series of blows must be characterized as a single assault.
Jefferson, supra, 123 Cal.App.2d 219, also does not support defendant's argument. In Jefferson, the defendant assaulted a police officer with a butcher knife outside her house, and 10 minutes later assaulted a different officer with a pocket knife. The prosecution charged her with one count of assault with a deadly weapon. On appeal, the defendant argued the trial court erred when it denied her demand to have the prosecutor elect the act on which it based its charge (the butcher knife assault or pocket knife assault). The appellate court rejected her claim because the record did not clearly reflect she demanded an election, and the "the rule relied on by the appellant 'has no application where a series of acts form part of one and the same transaction, and as a whole constitute but one and the same offense.' " (Id. at p. 221.)
Jefferson did not involve multiple counts (People v. Jennings (2010) 50 Cal.4th 616, 684 [cases are not authority for propositions not considered]), unlike in this case. Furthermore, the current case, unlike Jefferson, does not involve the prosecutor's failure to elect the act that constituted the charged offense.
In his reply brief, defendant asserts that "[a]pplication of the analyses employed" in People v. White (2017) 2 Cal.5th 349 (White) and Gonzalez, supra, 60 Cal.4th 533 "leads to the conclusion [defendant's] two convictions for assault with a deadly weapon are different statements of the same offense and not different offenses." We disagree.
In White, supra, 2 Cal.5th 349, our Supreme Court overruled its earlier decision in People v. Craig (1941) 17 Cal.2d 453. Taking a "fresh look" at whether the subdivisions of section 261 are "separate statements of same offense" or whether "they state different offenses," the court concluded "the same rule should apply to the different subdivisions of section 261, regarding rape, as applies to the different subdivisions of section 288a, regarding oral copulation." (White, at p. 357.) In Gonzalez, supra, 60 Cal.4th 533, our high court held a defendant could be convicted of both oral copulation of an unconscious person and oral copulation of an intoxicated person (§ 288a, subds. (f), (i)) based on a single act, although he could not be punished for both. (Gonzalez, at p. 535.) Although there were structural differences between section 261 and section 288a, the White court concluded the Legislature did not intend to treat the sex crimes of rape and oral copulation differently. (White, at p. 359.)
White and Gonzalez do not support defendant's position that his two convictions for assault with a deadly weapon were prohibited by section 954.
Defendant was charged with two counts of assault with a deadly weapon in violation of section 245, subdivision (a). "An assault is an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another, or in other words, it is an attempt to commit a battery." (People v. Rocha (1971) 3 Cal.3d 893, 899.) When defendant attempted to commit a violent injury on John with the bat, he completed an act of assault with a deadly weapon. When defendant picked up the knife and attempted to commit another violent injury on John with the knife, he completed yet another act of assault with a deadly weapon. Like in Johnson, the two acts of the charged crimes were completed. As discussed above, Vidana confirmed that section 954 authorizes multiple convictions for different or distinct offenses for acts connected together in their commission. (Vidana, supra, 1 Cal.5th at p. 650.) Accordingly, defendant was properly convicted of two counts of assault with a deadly weapon.
B. Section 654
Defendant also argues the trial court violated section 654 by imposing a two-year eight-month consecutive sentence for the burglary conviction in count 5 because he entered Jane's apartment with the intent to commit assault with a deadly weapon. The People correctly concede the trial court should have stayed the burglary sentence under section 654.
Section 654, subdivision (a), provides in 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." Section 654 precludes multiple punishments not only for a single act, but also for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; People v. Tarris (2009) 180 Cal.App.4th 612, 626.) " ' "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." ' [Citation.]" (People v. Capistrano (2014) 59 Cal.4th 830, 885 (Capistrano).)
" '[T]he purpose of section 654 "is to insure that a defendant's punishment will be commensurate with his culpability." ' [Citation.] 'It is [the] defendant's intent and objective, not temporal proximity of his offenses, which determine whether the transaction is indivisible.' [Citation.] ' "The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced." ' [Citation.]" (Capistrano, supra, 59 Cal.4th at p. 886.)
In People v. Radil (1977) 76 Cal.App.3d 702 (Radil), the court held that "it was improper to sentence [the defendant] for both assault and burglary where the entry for purposes of assault constituted the requisite act for burglary. The entry for purposes of assault and the assault itself formed one continuous transaction. [Citation.] This constitutes a violation of Penal Code section 654." (Radil, at p. 713.)
Here, because the burglary of Jane's residence was the means of perpetuating the assaults, the criminal acts were indivisible, incident to defendant's single objective of attacking both victims. (See, e.g., Radil, supra, 76 Cal.App.3d at p. 713; People v. McElrath (1985) 175 Cal.App.3d 178, 191 [burglary with intent to commit sexual assaults].) Indeed, the jury instructions explained and the prosecution's closing argument contended that defendant entered Jane's apartment with the intent to commit assault with a deadly weapon. As such, under section 654, the trial court should have stayed the two-year eight-month sentence for the burglary count. We will exercise our authority and modify the judgment accordingly. (People v. Alford (2010) 180 Cal.App.4th 1463, 1473.)
IV
DISPOSITION
The judgment is modified to stay the two-year eight-month term on count 5 for the burglary (§ 459) conviction. The superior court clerk is directed to prepare an amended sentencing minute order and an amended abstract of judgment reflecting the modification, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.