Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 50613513
NEEDHAM, J.
Cleaves Weaver (Weaver) appeals from a judgment of conviction and sentence imposed after a jury convicted her of numerous offenses, including driving under the influence and child endangerment. She contends: (1) the prosecutor committed misconduct in closing argument; and (2) her consecutive sentence for child endangerment must be set aside pursuant to Penal Code section 654. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An information charged Weaver with four counts. Count one alleged felony driving under the influence, and under the combined influence of alcohol with a drug, with three prior convictions. (Veh. Code, §§ 23152, subd. (a), 23550.) Count two charged felony driving with a blood alcohol level of .08 percent or more, with three prior convictions. (Veh. Code, §§ 23152, subd. (b), 23550). Count three alleged misdemeanor child endangerment. (Pen. Code, § 273a.) In count four, Weaver was alleged to have driven while her driving privilege was suspended and revoked for driving under the influence, and under the combined influence of alcohol and a drug. (Veh. Code, § 14601.2, subd. (a).)
The information also alleged that in the commission of counts one and two, Weaver had a blood alcohol level of .15 percent or more (Veh. Code, § 23578) and had a passenger in the vehicle who was less than 14 years old (Veh. Code, § 23572).
Weaver pled not guilty, and the matter proceeded to a jury trial. The court bifurcated the trial of the prior conviction allegations attached to counts one and two, as well as the allegation in count four as to the reason for the prior suspension or revocation of Weaver’s driver’s license. Those allegations were not submitted to the jury.
A. Evidence at Trial
At about 6:00 p.m. on February 15, 2006, Lindsey Whiteley (Whiteley) was driving on Monument Boulevard toward Contra Costa Boulevard. There was a lot of vehicle traffic, as well as people on the sidewalk. Whiteley observed a white Jeep Cherokee SUV (sports utility vehicle) ahead of her in the right lane of Monument Boulevard. The SUV went up on a curb and then veered back into a traffic lane. As Whiteley stayed behind the SUV, it weaved right and left and did not stay in any particular lane. Other cars on the road stopped or moved out of the way.
Whiteley and the SUV came to two adjacent turning lanes from Monument Boulevard onto Contra Costa Boulevard: Whiteley was in the left of the two lanes, and the SUV was in the other. As they turned onto Contra Costa Boulevard, the SUV veered into Whiteley’s lane, causing Whiteley to take evasive action and nearly collide with another vehicle.
The SUV veered back toward the other side of its lane, overcorrected, and drove onto the curb again. It then turned into the parking lot of a Rite-Aid store, followed by Whiteley, who believed the driver was drunk. The SUV pulled up to an area in front of the store and parked about ten feet from the door, even though there was no designated parking space. The SUV’s door “flew open,” and the driver (appellant Weaver) stepped out. Leaving the door open, Weaver stumbled into the store in a “very drunken manner.” Whiteley called 911 and drove up to the SUV to obtain the license plate number. Weaver reentered the SUV, backed up, and drove to the exit of the parking lot. Whiteley followed.
An audiotape of Whiteley’s conversation with the 911 operator, describing the SUV’s movements as they occurred, was played for the jury and admitted into evidence.
At the exit, several vehicles were waiting at a red light. When the light turned green, the SUV turned right from the left-turn lane and went through the intersection. Other vehicles took evasive action.
The SUV continued on Contra Costa Boulevard, with Whiteley directly behind, amidst a lot of traffic. The SUV swerved in and out of its lane, nearly hitting the median several times. A car in the lane to the right of the SUV stopped to avoid a collision.
Whiteley noted that police vehicles were poised to turn right from a Safeway lot onto Contra Costa Boulevard. The Safeway lot was about three blocks, or three traffic lights, from the Rite-Aid parking lot. The SUV swerved from the fast lane into the left-turn only lane.
In one of those marked police vehicles was Pleasant Hill Police Officer Jeff Herrington. At about 6:00 p.m., Herrington testified, he received notification from his dispatcher that an erratic driver had been spotted in the area. As he was preparing to exit the Safeway lot and turn onto Contra Costa Boulevard, he saw a vehicle matching the description, stopped at the red light in the left-turn lane on Contra Costa Boulevard, about 60 to 70 feet away.
When the left turn arrow turned green for the SUV, it did not turn, but instead proceeded straight ahead, northbound on Contra Costa Boulevard. Officer Herrington followed the SUV about one-sixteenth or one-eighth of a mile to the area of Vivian Drive. There was a lot of vehicle traffic on the street. The SUV weaved in the number two lane and then changed to the number one lane, without signaling. The vehicle swayed or weaved within the lane and then moved back to the number two lane.
As Officer Herrington and the SUV approached the intersection of Contra Costa Boulevard and Vivian Drive, the SUV stopped at the red light and Officer Herrington activated the emergency lights on his patrol car. The SUV turned left onto Vivian Drive and proceeded about 25 feet before pulling into the parking lot of a restaurant.
Officer Herrington parked his patrol car and contacted the SUV’s driver (Weaver). Weaver was in the driver’s seat, and a small child, whom the officer thought to be about four years old, was in the passenger seat.
Officer Herrington told Weaver why he stopped her. He noted her speech was slurred and her eyes were glassy, watery, and bloodshot.
Weaver was unable to produce a driver’s license. Officer Herrington asked her to get out of the vehicle. As she did, Officer Herrington noticed a half-full 750 milliliter bottle of vodka in the center console of her car.
Officer Herrington asked Weaver questions from an intoxication interrogation sheet. When asked whether she knew of anything wrong with her car, Weaver said her car or her brakes were overheating. She indicated she was not sick, had no physical defects, was neither diabetic nor epileptic, last slept “a few days ago” for four hours, and last ate four days ago, when she ate a sandwich. She denied that she had been drinking or felt the effects of alcohol. When asked if she had bumped her head, she initially replied “no” but about a second later said “Oh, I hit my head.” Officer Herrington did not see physical defects on her or any bruises, marks or bumps on her head. A photograph taken of her on February 15, 2006 after the stop did not show any bruises or marks on her head.
Weaver told Officer Herrington that she was the driver of the car, had driven from Danville, and was on her way to Santa Rosa. When asked her current location, Weaver responded, “Danville.” Actually, she was in Pleasant Hill. Officer Herrington asked Weaver what time she thought it was when he stopped her, and she said 6:45. In fact, it was around 6:00 p.m.
Officer Herrington observed prescription medicine in Weaver’s car and asked her about it. Weaver replied she had taken Zoloft and Clonazepam, which the officer understood were used to treat depression. Weaver said she took the Clonazepam about three hours earlier.
Officer Herrington also asked Weaver about the child in her car. Weaver explained that he was her son, born in 1998.
Officer Herrington decided to administer field sobriety tests. He explained to Weaver how to perform the standing Romberg test and demonstrated it for her. (At trial, he described the test as requiring the subject to stand with her feet together, hands at her sides, head back, and eyes closed. The subject was then supposed to estimate the passage of 30 seconds. According to Officer Herrington, any swaying would indicate being under the influence.) Weaver confirmed that she understood the test. When she attempted to perform it, on a level surface in the parking lot, she lost her balance, fell toward her vehicle, and was caught by another officer who had arrived at the scene. Weaver cried and said, “Just take me in.” The officers offered her another opportunity to take the test, but she refused.
Based on Weaver’s driving pattern, her appearance, her responses to the officer’s questions, and their overall interaction, as well as her performance on the standing Romberg test, Officer Herrington formed the opinion that Weaver was under the influence of alcohol.
Officer Herrington took Weaver into custody and transported her to the Pleasant Hill Police Department. He informed Weaver of her right to choose between a blood test or breath test. On direct examination, the officer testified that Weaver chose a blood test. On cross-examination, he explained that after Weaver indicated she did not care whether she took a blood or breath test, he informed her that she would take the blood test, and she agreed.
Jonathan Young, a registered nurse, lab technician, and phlebotomist, drew blood samples from Weaver at 7:03 p.m. and 7:20 p.m. He drew four vials and gave them to Officer Herrington, who submitted them to the crime lab and placed them into evidence.
Stephanie Williams, a forensic toxicologist and forensic alcohol supervisor at the Contra Costa County crime laboratory, was qualified to testify as an expert in forensic alcohol analysis and the effects of alcohol on the human body. She noted that all four vials were labeled with the time of “1920” (7:20 p.m.). She had tested two samples of the blood, and the analysis yielded a truncated average of .26 percent blood alcohol. Williams testified that, in her opinion, everyone’s ability to drive a motor vehicle is impaired when their blood alcohol is 0.08 percent.
Williams also opined that, if a female weighing approximately 120 pounds had a blood alcohol level of .26, she must have consumed six to seven standard drinks before being tested. (Officer Herrington had estimated Weaver’s weight to be 120 pounds and her height to be 5’3”.) Williams stated that ordinarily it takes about 30 minutes for alcohol to be absorbed into the body. A 120-pound woman whose blood alcohol was .26 at 7:20 p.m. would have had a blood alcohol of .27 at 6:05 p.m., assuming the bulk of the alcohol had already been absorbed and a standard elimination rate of .015 per hour. On cross-examination, Williams acknowledged the possibility that a .26 blood alcohol level represents the absolute peak alcohol concentration that a 120-pound woman would have after consuming 10.15 ounces of 80-proof vodka. She agreed that if a hypothetical person had consumed that quantity in the 15 minutes before being arrested, and then was tested an hour later, it would be impossible to know for sure what the blood alcohol level was at the time of arrest, because the blood alcohol could still have been rising.
Accepted as an expert in the area of field sobriety tests, Williams testified that a person who falls over and requires assistance by an officer to avoid hitting a vehicle while attempting a standard Romberg test displays conduct consistent with being under the influence of alcohol.
Williams was also asked to assume the following hypothetical: a driver is observed swerving in and out of the traffic lane, driving up on the curb and onto the center divide, disobeying traffic signals by going straight through a left-turn only signal, and, when attempting a field sobriety test, stumbled and fell into the arms of a police officer, and further, when tested, was found to have a blood alcohol level of .26. Williams opined that these assumed facts were consistent with the conclusion that the driver was under the influence of alcohol.
B. Jury Verdict
The jury found Weaver guilty on all four counts. In connection with counts one and two, the jury found true the allegations that Weaver had a passenger within the vehicle who was less than 14 years old. It found not true the allegations that Weaver had a blood alcohol level of .15 or more.
C. Court Findings and Sentence
Weaver waived her right to a jury trial as to the bifurcated prior conviction allegations and the allegation that her license had previously been suspended as a result of driving under the influence of alcohol or drugs.
The court found that Weaver had incurred two prior misdemeanor convictions in Sonoma County, including a March 2006 conviction charged in count one. However, the court did not find true the allegations that Weaver had suffered qualifying prior convictions in Idaho and Nevada. The court therefore determined that Weaver could not be punished for felony driving under the influence, as alleged under the sentence enhancement set forth in Vehicle Code section 23350, and it deemed Weaver’s convictions for counts one and two to be misdemeanors.
The court also found true the allegation attendant to count four, that the suspension or revocation of Weaver’s license at the time of the charged driving offenses was because she had previously been convicted for driving under the influence (Veh. Code, § 23152). (See Veh. Code, § 14601.2.)
The trial court suspended imposition of sentence and placed Weaver on probation for four years. As conditions of probation, the court then “sentence[d]” Weaver to a one-year term in county jail for count one (Veh. Code, § 23152, subd. (a)) and a consecutive one-year term in county jail for count three (Pen. Code, § 273a). Although the court had already suspended imposition of sentence, it purported to “stay” the sentence for count two (Veh. Code, § 23152, subd. (b)), pursuant to Penal Code section 654. The court further “sentence[d]” Weaver to serve a consecutive six-month term for count four (Veh. Code, § 14601.2) but purportedly “stay[ed] imposition of that sentence during the period of probation.” Weaver’s objections that the sentence was improper under Penal Code section 654 were overruled.
This appeal followed.
II. DISCUSSION
A. Prosecutorial Misconduct
Weaver seeks reversal of her conviction for misdemeanor child endangerment (Pen. Code, § 273a, subd. (b)), contending the prosecutor committed misconduct by arguing to the jury that Weaver drove “all the way from Santa Rosa,” which was purportedly contrary to the evidence at trial. Weaver further complains that the trial court overruled defense counsel’s objection to the prosecutor’s statement. Weaver fails to establish reversible error.
As the jury was instructed, a conviction for child endangerment required satisfactory proof that Weaver, “while having care or custody of a child, willfully caused or permitted the child to be placed in a situation where the child’s person or health might have been endangered,” and “was criminally negligent when she caused or permitted the child to be endangered.” (CALCRIM No. 823.) The court further instructed that “criminal negligence” involved “more than ordinary carelessness, inattention, or mistake in judgment,” and required proof that Weaver acted “in a reckless way that create[d] a high risk of death or great bodily harm” and that “a reasonable person would have known that acting in that way would create such a risk.” (Ibid.) In addition, Weaver’s act had to “amount[] to disregard for human life or indifference to the consequences of that act.” (Ibid.)
In her closing argument, the prosecutor asserted that the elements of child endangerment were met. Next came the following colloquy: “PROSECUTOR: So when you go back and you think about this, we’re really talking about the fact that the defendant put her child in a very, very dangerous position. And we know that the defendant was driving from Santa Rosa. She was driving like that all the way from Santa Rosa— [¶] [DEFENSE COUNSEL]: Objection. Not in evidence. [¶] THE COURT: Overruled.” (Italics added.) The prosecutor summarized, “Ladies and gentlemen, that is why Ms. Weaver put her son in an extremely dangerous position.”
The prosecutor argued: “To show that she acted in a reckless way and created a high risk of death, we have the defendant’s driving pattern, the level of intoxication, the mistakes that she made while she was driving, the fact that she almost hit several vehicles, the fact that she drove up on the curb, the fact that she left her car in the middle of the doorway of the Rite-Aid parking lot. [¶] The defendant was reckless, and her reckless behavior created a high risk of death or great bodily harm to not only the other drivers on the road but to her son, [M.]. [¶] And the second prong, that a reasonable person would have known that acting in that way would create such a risk. I think that goes without saying at this point.”
According to the reporter’s transcript of the trial, the evidence from Officer Herrington was that Weaver told him she was driving from Danville to Santa Rosa when he stopped her in Pleasant Hill, not that she was driving from Santa Rosa.
Assuming that the prosecutor mischaracterized the evidence provided by Officer Herrington, there was neither prosecutorial misconduct nor judicial error so egregious or prejudicial as to compel reversal. In the first place, there is no reasonable likelihood that the jury construed or applied the prosecutor’s remark in an objectionable manner. (See People v. Berryman (1993) 6 Cal.4th 1048, 1072.) The court instructed the jury to decide the facts based on the evidence. (CALCRIM Nos. 200, 222.) The court further informed the jurors: “Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discussed the case, but their remarks are not evidence.” (CALCRIM No. 222.) There is no reason to believe the jury did not follow these instructions.
Respondent suggests the court reporter might have erred in transcribing Officer Herrington’s trial testimony, and that he actually testified Weaver said she had driven from Santa Rosa, the prosecutor summarized the testimony correctly, and the court denied defense counsel’s objection on that basis.
Furthermore, even if the prosecution’s remark and the court’s ruling led the jury to believe, contrary to the evidence, that Weaver had driven from Santa Rosa, any error in this regard was harmless. The apparent point of the prosecutor’s remark was that Weaver was driving a sufficiently long period of time, such that she could be deemed criminally negligent for purposes of the child endangerment statute. If saying that Weaver drove “from Santa Rosa” was erroneous, it was not prejudicial, since defense counsel also informed the jury that Weaver “had been driving for quite some time.” (Italics added.) Whether from Santa Rosa or to Santa Rosa, Weaver’s “driving for quite some time” underscored her recklessness pertinent to the child endangerment charge, especially in light of the way she was driving and the fact that, as the jury necessarily found in convicting her on counts one and two, she was intoxicated at the time.
Weaver contends defense counsel’s statement, that she was “driving for quite some time,” must be interpreted to be consistent with the defense argument that she drank vodka “while driving from Danville to Pleasant Hill (11 miles).” Even on this basis, in light of the evidence in the record, a reasonable jury could have found beyond a reasonable doubt that Weaver endangered her child.
Weaver argues that the reference to driving from Santa Rosa was significant, because the jury was more likely to find that Weaver endangered her child if it thought she “had been barreling down the freeways and across bridges all the way from Santa Rosa to Pleasant Hill, while sipping on her vodka bottle.” There was, however, no basis for the jury to have such an impression. At no point did the prosecutor mention speeding on a freeway or going over bridges, and there was no evidence from which the jury could have concluded that driving from Santa Rosa implicated such conduct. Furthermore, defense counsel expressly refuted the idea. Without any objection or comment by the prosecutor or the judge, defense counsel told the jury: “Well, this is driving around on city streets. . . . [¶] This is not driving a hundred miles an hour on the freeway.” (Italics added.) Appellate counsel’s hyperbole finds no basis whatsoever in the record.
Indeed, the prosecutor’s brief reference to driving from Santa Rosa paled in comparison to the overwhelming evidence of Weaver’s endangerment of her child, based on her driving in Pleasant Hill alone. Whiteley described her eye-witness account of Weaver’s driving: repeatedly driving up on the curb, veering across lanes, weaving left and right, causing other drivers to take evasive action, pulling up in the entranceway to Rite Aid, leaving the car door open with her child inside, stumbling into the store and returning, turning right out of the left-turn lane of the parking lot, nearly swerving into the median, and proceeding straight through an intersection from a left-turn only lane. It was this evidence the prosecutor emphasized in closing argument. And this evidence, along with Weaver’s toppling over on a field sobriety test, the half-empty bottle of vodka in the center console of her car, her appearance when arrested, her failure to know what town she was in, her blood alcohol level of .26, and the expert witness testimony that those facts (without any consideration of driving from Santa Rosa) were consistent with a person driving under the influence of alcohol, established Weaver’s culpability. In light of this mountain of proof, the context of the prosecutor’s remark, and the court’s instructions, we are convinced that beyond a reasonable doubt the prosecutor’s misstatement of the evidence did not contribute to Weaver’s conviction.
Weaver’s appellate counsel denigrates Whiteley as an unreliable witness who was “impossible to credit.” The trial court must not have shared that view, however, since it relied in part on Whiteley’s testimony in observing at the sentencing hearing that Weaver’s offense was “one of the most egregious DUI’s that I have ever seen in my time on the bench.” There is no reason to conclude that the jury, who also saw Whiteley testify, found her to be unworthy of belief.
B. Consecutive Terms On Count One and Count Three As Probation Conditions
Weaver contends that her consecutive sentence for child endangerment must be set aside. Specifically, she maintains, since the court imposed a one-year jail term as a condition of probation for driving under the influence in count one (Veh. Code, § 23152, subd. (a)), it erred in imposing a separate, consecutive, one-year jail term as a condition of probation for child endangerment in count three (Pen. Code, § 273a, subd. (b)). Weaver primarily argues that the sentence runs afoul of Penal Code section 654.
Penal Code section 654 (section 654), subdivision (a) reads 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.” Under this statute, conduct that violates more than one criminal provision is not subject to multiple punishments, unless the defendant’s intent and objective was to perpetrate more than one crime. As our Supreme Court has explained: “The proscription against double punishment in section 654 is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute within the meaning of section 654. The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.” (People v. Bauer (1969) 1 Cal.3d 368, 376; see People v. Hicks (1993) 6 Cal.4th 784, 789 [“‘[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]”].)
We consider first whether section 654 applies, then whether the statute’s requirements were met, and finally whether the imposition of consecutive terms was barred by a statement in the probation department’s presentence report.
1. Application of Section 654 To Conditions of Probation
The court suspended imposition of sentence on all of the counts for which Weaver was convicted and placed her on probation for a term of four years. The court ordered, as a condition of probation, that she serve a one-year term in county jail for count one, and further ordered as a separate condition of probation that she serve a consecutive one-year term in county jail for count three. At the sentencing hearing, the court rejected Weaver’s contention that separate, consecutive county jail terms for counts one and three were barred by section 654.
At sentencing, the court clearly suspended the imposition of sentence and placed Weaver on four years probation: “I’ll suspend imposition of sentence, issue probation which will be for a period of four years court probation.” The parties do not dispute this point. Therefore, the court’s subsequent decision to “sentence” Weaver to one year in county jail for one count of driving under the influence and to “sentence” her to a consecutive year in county jail for misdemeanor child endangerment is best described as imposing two one-year county jail terms as conditions of Weaver’s probation. The court’s decision to “sentence” Weaver to six months for count four and then “stay imposition of that sentence during the period of probation” is best interpreted to mean that the six-month term on count four would not have to be served as a condition of probation.
Respondent contends that, because the two one-year terms were imposed as conditions of probation, section 654 does not apply. Where imposition of sentence is suspended and a defendant is placed on probation—even if the probation is conditioned on jail time—there is no punishment within the meaning of section 654 and thus the statute does not apply. (People v. Wittig (1984) 158 Cal.App.3d 124, 137 (Wittig); People v. Stender (1975) 47 Cal.App.3d 413, 416, 425 (Stender).) Weaver counters this assertion by disparaging Wittig and Stender as reflections of a principle that “’[t]hrow away arguments lead to throwaway law’.”
In Wittig, the defendant was granted probation for three years on the condition that he serve 90 days in jail. (Wittig, supra, 158 Cal.App.3d at pp. 126-127.) Wittig contended he was subjected to double punishment in violation of section 654, in receiving concurrent sentences for assault with a deadly weapon and shooting at an occupied vehicle. (Wittig, at p. 137.) The court stated: “Imposition of sentence was suspended; each defendant was granted probation as to each offense. Because sentence was not imposed on either defendant, there is no double punishment issue. The section 654 issue should be presented to a court upon any future attempt to impose a double punishment upon either of these defendants in the event of a probation violation.” (Wittig, at p. 137.)
In Stender, the defendant was found guilty of burglary, rape, kidnapping and oral copulation. “Imposition of sentence was suspended and three years probation granted. As a condition of probation defendant was to serve nine months in the county jail.” (Stender, supra, 47 Cal.App.3d at p. 416.) The defendant contended that the sentence was improper, arguing that the rape and oral copulation sentences had to be set aside. (Id. at p. 424.) The court stated: “In the instant case no sentence was pronounced. The court suspended imposition of sentence and granted probation. [¶] Penal Code section 654 proscribes double punishment, not double conviction, and thus it is the double penalty, not the double conviction that is brought into question. . . . [¶] Probation is an act of grace and clemency designed to allow rehabilitation [citations] and is not within the ambit of the double punishment proscription of Penal Code section 654. [Citations.]” (Stender, at p. 425.)
As in Wittig and Stender, sentence was not imposed in this case and Weaver was instead granted probation. In accord with this precedent, section 654 is not implicated, even though Weaver was ordered to serve jail time as a condition of her probation.
Noting that the jail terms in Wittig and Stender were for less than a year, Weaver argues that a different analysis is required—and section 654 should be applied to jail time ordered as a condition of probation—where the failure to apply section 654 would result in a jail term that would otherwise be unlawful under Penal Code section 19.2. Penal Code section 19.2 limits confinement in county jail to one year, whether by penal sentence or as a condition of probation, unless consecutive sentences have been imposed for multiple offenses. Here, consecutive sentences were imposed for multiple offenses, so the two one-year jail terms, imposed consecutively as conditions of probation, are not unlawful under Penal Code section 19.2. Nor does the fact that Penal Code section 19.2 applies both to penal sentences and probation conditions suggest that section 654 should also apply to both.
Penal Code section 19.2 reads: “In no case shall any person . . . as a condition of probation upon conviction of either a felony or a misdemeanor . . . except upon conviction of more than one offense when consecutive sentences have been imposed, be committed for a period in excess of one year. . . .”
Nonetheless, we question whether Wittig and Stender should preclude the application of section 654 in this case. In Wittig and Stender, the defendants were required to serve relatively short amounts of time in jail as conditions of obtaining probation, in lieu of the much greater statutory punishment they would have otherwise received for their offenses. Here, by contrast, Weaver was required to serve two years in county jail—the full terms set forth by statute for counts one and three. (Veh. Code, § 23540, subd. (a); Pen. Code, § 273a, subd. (b).) Since section 654 would have to be considered if the court had sentenced Weaver to two one-year terms without probation, we question how section 654 can be sidestepped (or how Weaver is less punished) where the court requires her to serve the same amount of time but describes it as a condition of probation.
In the end, however, we need not decide the issue. As discussed next, even if section 654 does apply, it does not bar the two one-year terms for counts one and three.
2. Multiple Objectives Under Section 654
Weaver contends that section 654 bars imposition of consecutive sentences on counts one and three because she perpetrated the offenses of driving while intoxicated and child endangerment by the same criminal act. (See People v. Latimer (1993) 5 Cal.4th 1203, 1208 (Latimer); Neal v. State of California (1960) 55 Cal.2d 11, 19.) Furthermore, she urges, her criminal objective in perpetrating the two offenses was the same, because she had the criminal objective of driving under the influence, and driving under the influence was the means by which she also accomplished the criminal objective of endangering the safety of her child.
Whether a defendant held multiple criminal objectives is a question of fact, subject to the substantial evidence test. (People v. Osband (1996) 13 Cal.4th 622, 730 (Osband); People v. Arndt (1999) 76 Cal.App.4th 387, 397 (Arndt).) The imposition of separate sentences implies a judicial finding that the crimes involved separate objectives (Osband, at p. 730), and in this case the court expressly remarked that the offenses were “separate offenses, separate actions.”
The record supports a finding that Weaver did not harbor the same criminal objective in perpetrating count one (driving under the influence) and count three (child endangerment). In driving under the influence, Weaver’s objective was to operate a motor vehicle while intoxicated. In endangering her child, her objective was to create a risk of harm to her child by driving while intoxicated with the child in the car. This is a distinct objective, and there was sufficient evidence that she knew her son was in the car while she consumed alcohol to the point of intoxication as she drove.
Our conclusion that section 654 does not preclude punishment for both count one and count three is buttressed by the statutory scheme. Weaver was convicted of driving under the influence (Veh. Code, § 23152), with a passenger who was under the age of 14 (Veh. Code, § 23572), and endangering her child (Pen. Code, § 273a). Each of these offenses or enhancement carries a term of sentence. By statute, however, because Weaver was convicted of child endangerment, the enhancement for having a passenger under the age of 14 could not be imposed. (Veh. Code, § 23572, subd. (c) [“No punishment enhancement shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident.”].)
It is apparent from the enhancement in Vehicle Code section 23572, subdivision (c), that the Legislature intended to increase the punishment for violations of Vehicle Code section 23152 if the defendant had a child under 14 in the car. The fact that the Legislature barred that enhancement where there was also a conviction under Penal Code section 273a suggests its understanding that the defendant would be punished for child endangerment as well as driving under the influence. It would indeed be odd to interpret subdivision (c) of Vehicle Code section 23572 as imposing additional punishment if there was a child under 14 in the car, but relieving a defendant of any additional punishment if, in addition to there being a child under 14 in the car, the defendant was also found guilty of child endangerment.
Weaver’s speculation as to the reason for such an absurd result is wholly unconvincing. First she notes that Penal Code section 273a can lead to a prison sentence if a felony is charged under subdivision (a) of the statute. However, subdivision (c) of Vehicle Code section 23572 applies to Penal Code section 273a offenses charged as misdemeanors as well as felonies, and in this case Weaver was charged with a misdemeanor. Weaver also muses that the Legislature might have thought it contrary to a child’s best interest for the parent to serve more time than that required by the Vehicle Code, because prolonged confinement might harm the parent-child relationship. She provides no support for her hypothesis concerning legislative intent, and it merits no further analysis.
Lastly, we must be mindful that the point of section 654 is to ensure the punishment imposed on the defendant corresponds to her culpability. (See Latimer, supra, 5 Cal.4th at p. 1211.) Counts one and three target different legislative bans—one designed to protect the public from drunken drivers, the other intended to protect children from the criminal negligence of their parents. Weaver’s culpability in driving intoxicated with her young child in the car is obviously greater than if she had driven with him elsewhere. Weaver fails to establish a violation of section 654. (See Arndt, supra, 76 Cal.App.4th at p. 398.)
3. Consecutive Terms Under California Rules of Court, Rule 4.425
Weaver also suggests that the court erred by ordering her to serve the two one-year terms in county jail for counts one and three consecutively, because the probation department’s pre-sentence report had recommended concurrent terms based on the view that “the convictions indicate a single period of aberrant behavior.”
A sentencing court, after considering any limits imposed by section 654, must determine whether the sentences on multiple counts will be imposed consecutively or concurrently. (Cal. Rules of Court, rules 4.424, 4.425.) “Criteria affecting the decision to impose consecutive rather than concurrent sentences include: [¶] (a) Criteria relating to crimes [¶] Facts relating to the crimes, including whether or not: [¶] (1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. [¶] (b) Other criteria and limitations [¶] Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant’s prison sentence; and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences.” (Cal. Rules of Court, rule 4.425, italics added.)
Here, as discussed post, the court found that the offenses were “separate offenses, separate actions,” and sufficient evidence supported the conclusion that the crimes and objectives were predominantly independent of each other. Moreover, in expressly rejecting the probation officer’s recommendation for concurrent time, the court identified the aggravating circumstances of the incident. The court reflected that Weaver’s conduct, including both her driving under the influence and the presence of her child, was one of the most egregious drunk driving incidents he had ever seen in his years on the bench. The court added: “The seven-year-old in the car seat next to [Weaver] with an open bottle of vodka in the car, it deserves separate punishment.” The court also reasoned that, just as an enhancement term under Vehicle Code section 23572 is imposed consecutively, the term for child endangerment should run consecutively.
A sentencing court is not required to abide by the recommendation of the probation department (People v. Butler (1988) 202 Cal.App.3d 602, 607-608), and Weaver fails to demonstrate error in the court’s diverting from the recommendation in the matter before us.
In the final analysis, the court did not err in requiring Weaver to serve two consecutive one-year jail terms as conditions of her probation.
C. Section 654: Count One and Count Four
Weaver contends that section 654 bars separate punishment for driving on a revoked license in count four (Veh. Code, § 14601.2, subd. (a)), in light of the punishment for driving under the influence in count one (Veh. Code, § 23152). She acknowledges, however, that the binding precedent of our Supreme Court precludes us from so holding. (In re Hayes (1969)70 Cal.2d 604, 607; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Weaver reserves the right to argue in a higher court that Hayes should be overruled.
Applying the precedent of our Supreme Court, we conclude that Weaver has failed to establish reversible error.
III. DISPOSITION
The judgment is affirmed.
We concur: JONES, P. J., REARDON, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.