People v. Evans CA4/1

Filed 8/6/14 P. v. Evans CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064810

Plaintiff and Respondent,

v. (Super. Ct. No. SCS262282)

MICHAEL EVANS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Francis M.

Devaney, Judge. Affirmed.

Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie

Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
 A jury found Michael Evans guilty of three crimes occurring on January 1, 2013:

(1) two counts of spousal abuse (Pen. Code1, § 273.5, subd. (a)); and (2) one count of

vandalism (§ 594, subd. (a)). The jury also found Evans guilty of one count of

dissuading a witness on February 1, 2013 and one count of dissuading a witness on

February 5, 2013. (§ 136.1, subd. (a)(1).) The jury acquitted Evans of additional charged

crimes occurring on January 21, 2013. In a bifurcated proceeding, Evans admitted five

prison priors.

The court imposed a sentence of seven years four months, but then suspended

execution of the sentence and granted probation on the condition that Evans comply with

probation conditions and complete a two-year residential program at Delancey Street

Foundation.

On appeal, Evans contends: (1) he was improperly convicted of two separate

counts for spousal abuse that occurred on the same date; (2) he was improperly convicted

of two separate counts of attempting to dissuade a witness that occurred on two separate

dates; and (3) to the extent he was properly convicted of the multiple counts, the court

violated section 654 by imposing sentences on both spousal abuse convictions, both

dissuading witness convictions, and on the vandalism count. We reject these contentions

and affirm.

1 All further statutory references are to the Penal Code.

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 FACTUAL AND PROCEDURAL BACKGROUND

In April 2012, Evans married Yanira Zendejas. They lived in Zendejas's house in

Chula Vista. Zendejas had three children from prior relationships, but the children were

living with Zendejas's sister because of child protective issues. Zendejas had a history of

drug and alcohol abuse. The charged crimes occurred on several different dates. We

summarize below the relevant facts occurring on each of these dates.

January 1, 2013

On January 1, 2013, Zendejas had her children for an overnight visit. At about

6:00 p.m., Zendejas and Evans engaged in an argument. During the argument, Evans

slapped Zendejas in the face, causing a bruise under her left eye. Evans told her he was

going to knock her teeth out and then threw an empty alcohol bottle at her, resulting in a

bruise to the back of her leg. Evans also scratched Zendejas's hand and injured her chest

while he grabbed her cell phone from her.

Zendejas did not remember the exact order of these physical actions against her.

She said Evans committed these acts during the same argument, which took "[m]aybe

like an hour and a half."

Evans then drove the children to Zendejas's sister's house. While he was gone,

Zendejas went to a pay phone (because Evans had taken her cell phone) and called her

sister. Zendejas was crying and told her sister that Evans had "beat her up" and took her

cell phone away. Zendejas's sister called the police.

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 When Evans returned home, he did not have his keys and Zendejas would not

open the door. Evans forcefully pushed the door and the door broke off the hinges. The

couple then continued to argue and Evans slapped her again in the chest.

As the police officers arrived, Evans left through the back door. Zendejas

appeared to have been crying. She had visible injuries, including a bruise under her left

eye, scratches on her hand, and redness and bruising to her neck area, face, and chest.

Zendejas also had a large bruise on the back of her leg from being hit with the bottle.

Several weeks later, police officers responded to a call regarding problems at

Zendejas's home. The police officers found Evans at the home and arrested him.2

February 1, 2013

On February 1, 2013, Evans called Zendejas from jail. The lengthy phone call

was recorded and played for the jury. Evans repeatedly told Zendejas not to show up for

the upcoming preliminary hearing.

February 5, 2013

Four days later, on February 5, Evans again called Zendejas from jail. That

recorded conversation was also played for the jury. Zendejas told Evans she had been

served with a subpoena for a February 6 hearing and she was required to attend the court

hearing or she would be served with a warrant. Evans told her not to attend, saying they

could not "make you go," and that "If you go, I'm done. . . . We're done." Evans told her

to just "tell 'em I wasn't there." He also said, "[y]ou promised me you would not go on

2 Because the jury acquitted Evans of the events occurring on this date, we do not
detail the underlying facts.
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that stand." He reprimanded her for opening the door to be served the subpoena. He also

said to testify she made "up shit" and had not told the truth.

Charged Crimes and Jury Verdict

On counts 1 and 2, the amended information alleged that on January 1, 2013

Evans "willfully and unlawfully inflict[ed] a corporal injury resulting in a traumatic

condition upon . . . Zendejas," in violation of section 273.5, subdivision (a). Count 1

alleged "Injury to victim's leg," and count 2 alleged "Injury to victim's face, neck and

chest." The jury found Evans guilty of both of these section 273.5 counts.

On counts 6 and 7, the amended information alleged Evans "attempt[ed] to prevent

and dissuade a witness and victim from attending and giving testimony," in violation of

section 136.1, subdivision (a)(2). Count 6 alleged the crime occurred on February 1,

2013, and count 7 alleged the crime occurred on February 5, 2013. The jury found Evans

guilty of both of these section 136.1 counts.

The jury also found Evans guilty of a vandalism charge (count 3) regarding his

breaking the door to Zendejas's home on January 1, 2013.

Sentencing

At the sentencing hearing, the court imposed a sentence of seven years four

months.3 But the court suspended execution of the sentence and granted probation,

conditioned on Evans complying with specified probation conditions and successfully

3 The sentence consisted of: a three-year midterm on count 1; a consecutive one
year on count 2; a consecutive eight months on count 6; a consecutive eight months on
count 7; a consecutive one year each for two prison priors (and striking the remaining
five prison priors). The court sentenced Evans to time served on the vandalism count.
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completing the two-year Delancey Street residential program. The court admonished

Evans there would be no second chances and if he were to fail to complete the Delancey

Street program or violate a probation condition, the seven-years-four-months sentence

would be imposed without qualification or modification.

DISCUSSION

I. Multiple Convictions Under Spousal Abuse Statute

Evans contends his two section 273.5 spousal abuse convictions must be

consolidated because the multiple convictions violate section 954. Specifically, Evans

contends the two convictions should have been a single conviction because they were

based on actions that occurred during the same "course of conduct." The argument is

without merit.

A. Legal Principles

Generally, under section 954 a defendant may suffer multiple convictions arising

from the same act or course of conduct. (People v. Correa (2012) 54 Cal.4th 331, 336-

337 (Correa); People v. Reed (2006) 38 Cal.4th 1224, 1226-1227; People v. Thurman

(2007) 157 Cal.App.4th 36, 43.) "Unless one offense is necessarily included in the

other . . . , multiple convictions can be based upon a single criminal act or an indivisible

course of criminal conduct . . . ." (People v. Benavides (2005) 35 Cal.4th 69, 97.) "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, and each offense of which the defendant is convicted must be stated in

the verdict . . . ." (§ 954.)

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 Under section 954, a separate conviction is permissible for each completed crime

(as determined by the statutory elements of the crime), even if the defendant had the same

intent and objective in committing the multiple crimes and even if the defendant

committed the crimes at or near the same time. (People v. Johnson (2007) 150

Cal.App.4th 1467, 1474-1477 (Johnson).) Applying this principle in factual

circumstances similar to here, the Johnson court held a defendant may be properly

charged and convicted of multiple counts of spousal abuse under section 273.5 based on

acts occurring during a single event if the victim suffered multiple injuries caused by

distinct applications of force. Interpreting the statute, the court reasoned 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." (Id. at p. 1477.)

Based on this analysis, the Johnson court upheld three separate convictions of

section 273.5, each of which concerned separate injuries sustained during the same

beating. (Johnson, supra, 150 Cal.App.4th at p. 1477.) The court explained: "Defendant

indisputably committed successive acts of violence against Doe [during the same beating

incident]. Although Doe's testimony does not precisely describe the sequence of the

beating, we do know that defendant beat her about the face and head; held her by her

throat up against the wall; beat her on her back, hips, and legs; and stabbed her in the

upper arm. Doe suffered two black eyes, a split lip, bruises to her neck, back, and hips

and a puncture wound to her upper arm. From this evidence the jury could have

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concluded that defendant completed one violation of section 273.5 when he beat Doe

about the head and face, blackening her eyes and splitting her lip; another when he held

her by the throat and continued to strike her and restrain her such that she suffered bruises

about her back and neck; and another when he injured her upper arm, drawing blood and

leaving a visible scar. Accordingly, the evidence is sufficient to support the three

convictions of section 273.5." (Ibid.)

B. Analysis

Under section 954, Evans was properly convicted of two separate crimes relating

to his beating his wife on January 1, 2013. In count 1, the jury found the prosecution

proved Evans willfully and unlawfully inflicted a corporal injury resulting in injury to

Zendejas's leg. In count 2, the jury found the prosecution proved Evans willfully and

unlawfully inflicted a corporal injury resulting in injuries to Zendejas's face, neck, and

chest. Evans's action in causing injury to Zendejas's leg (throwing the bottle) was distinct

from his actions causing injuries to the rest of Zendejas's body (slapping, grabbing,

hitting). Evans does not challenge the sufficiency of the evidence to support that

Zendejas did suffer these specific injuries based on Evans's engaging in multiple acts of

violence against her. Because each count alleged a different completed injury or injuries

to Zendejas, Evans could be properly convicted of these multiple acts in separate counts.

(See Johnson, supra, 150 Cal.App.4th at pp. 1473-1477.) The fact that these injuries

were sustained during a single continuous beating or that Evans may have held the same

intent and objective in inflicting these injuries does not bar the multiple convictions. (Id.

at p. 1474.)

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 We reject Evans's argument that the multiple convictions were improper because

the prosecutor charged count 2 as including several injuries inflicted at different times,

and thus a course of conduct, and alleged count 1 as a single act. Section 954 permits the

prosecutor to elect whether to charge multiple crimes based on multiple completed acts or

to allege a single completed act as a single crime. The fact that count 2 charged multiple

completed acts and count 1 charged a single act was within the prosecutor's charging

discretion and did not constitute a violation of section 954.

As his primary challenge to his multiple section 273.5 convictions, Evans argues

that Johnson was wrongly decided. In support, he relies on a case decided before

Johnson, People v. Thompson (1984) 160 Cal.App.3d 220 (Thompson). This reliance is

misplaced. Thompson concerned a different issue involving the defendant's right to be

informed of the particular act he was accused of committing and his right to a jury

unanimity instruction. (Thompson, supra, 160 Cal.App.3d at p. 223.) In Thompson, the

prosecutor charged only one count of section 273.5, but the victim testified to multiple

acts of abuse. (Id. at pp. 222-223.) Thompson ruled that section 273.5 contemplated a

continuous course of conduct over time even if "each individual act may not amount to a

crime." (Id. at p. 225, italics added.) Thompson thus held that because the continuous

course of conduct is a single crime, no unanimity instruction was required. (Id. at pp.

224-226.)

Thompson is inapplicable here because the Thompson court did not consider the

issue regarding the prosecution's power to charge multiple acts of abuse where, as here,

each battery satisfied the elements of section 273.5, subdivision (a) and constituted a

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crime. Unlike the defendant in Thompson, Evans does not claim he was unaware of the

specific act underlying the charges or raise a unanimity issue. Moreover, to the extent

that Thompson suggested a section 273.5 crime is not completed upon the infliction of a

discrete injury by a distinct act, we reject this interpretation of the statute. (See Johnson,

supra, 150 Cal.App.4th at pp. 1473-1477; see also People v. Healy (1993) 14

Cal.App.4th 1137, 1139-1140 ["Thompson . . . did not directly concern a limitation upon

the number of convictions a defendant could suffer."]; People v. Lofink (1988) 206

Cal.App.3d 161, 165 [upholding multiple charges for child abuse based on acts occurring

during same course of conduct resulting in separate identified injuries].)

We have reviewed each of Evans's additional cited authorities, and find them

inapplicable or unpersuasive. For example, Evans cites People v. Oppenheimer (1909)

156 Cal. 733 for the proposition that multiple batteries occurring during a single

assaultive episode can result only in a single conviction. However, Oppenheimer did not

address the issue whether multiple acts of violence can support multiple assault

convictions. There, the defendant was charged with and convicted of a single count of

assault (with two weapons), 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 pp. 740-741.) Here, Evans was charged with and

convicted of at least two discrete physical 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 characterized as a single assault.

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 Similarly, in People v. Djekich (1991) 229 Cal.App.3d 1213, this court addressed

a different issue than the one before us, concerning the question whether a zoning

ordinance specifically authorized a separate conviction for each violation. (Id. at pp.

1221-1224.) Although we broadly stated in dicta that a defendant can be convicted of

"only a single offense" if "the commission of a crime involves continuous conduct" and

was committed with a "single intent and objective," we did not consider the issue whether

section 954 bars multiple convictions for separate completed acts under the specific

statutory provision. (Id. at p. 1221.) Cases are not authority for propositions not

considered. (People v. Jennings (2010) 50 Cal.4th 616, 684.)

II. Multiple Convictions for Attempting To Dissuade Victim/Witness

Evans also contends his two separate convictions for attempting to dissuade a

victim or witness violated section 954. He argues that his two separate telephone calls to

Zendejas, four days apart, was one continuous course of conduct to achieve a single goal

and therefore can support only one conviction under section 136.1.

Section 136.1, subdivision (a)(2) prohibits "[k]nowingly and maliciously

attempt[ing] to prevent or dissuade any witness or victim from attending or giving

testimony at any trial, proceeding, or inquiry authorized by law." Count 6 alleged a

violation of section 136.1 based on a February 1, 2013 telephone call, and count 7 alleged

a violation of section 136.1 based on a February 5, 2013 telephone call.

At trial, the prosecution presented evidence that on February 1, 2013, Evans called

Zendejas from jail and repeatedly told her she should not show up for court. Four days

later, Evans again called Zendejas, and during that conversation, Zendejas said she had

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been served with a subpoena. Evans responded by repeatedly telling her not to attend the

hearing, threatening to end their marriage, telling her what to testify to if she did go to the

hearing, and reprimanding her for being served with a subpoena. The jury found Evans

guilty of the section 136.1 offenses alleged in count 6 and count 7.

Evans does not challenge that substantial evidence supported that he violated

section 136.1 with respect to each telephone call. However, similar to his challenge to

his spousal abuse convictions, Evans contends he could be convicted of only one count of

violating section 136.1 because he had the same intent and objective in both calls—to

dissuade Zendejas from testifying. The argument is without merit.

First, there was substantial evidence to show that Evans had a separate intent and

objective with respect to both phone calls because the circumstances were different—a

subpoena had been served between the two calls and Evans had a different motivation in

making each call. Moreover, even assuming the same intent, as explained above the

"same intent and objective" test is not necessarily the proper standard for analyzing

claims under section 954. (See Johnson, supra, 150 Cal.App.4th at p. 1474.) The proper

analysis is whether the defendant engaged in a completed crime as determined by the

statutory elements of the charged offense. (Id. at pp. 1473-1477.) If the defendant did

commit multiple completed crimes, multiple convictions are proper. (Ibid., see Correa,

supra, 54 Cal.4th at pp. 336-337.) In this case, Evans violated section 136.1 each time he

called his wife to dissuade her from coming to court; these telephone calls were made

four days apart. Thus, Evans could be charged and convicted for each telephone call.

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 As in his prior argument, Evans relies on case law regarding whether the charged

offense may be considered a continuing course-of-conduct crime in other contexts. The

logic of those decisions do not apply here. For example, in People v. Salvato (1991) 234

Cal.App.3d 872 (Salvato), the defendant made a series of threats to kill his wife if she did

not agree to a favorable property settlement in their divorce. (Id. at p. 876.) He was

charged with numerous crimes, including two counts of section 136.1, one occurring

during a specified period in early 1988, and the other occurring during a specified period

in 1989. (Id. at p. 878.) The jury was given a unanimity instruction, and the defendant

was convicted of both counts. (Ibid.) On appeal the defendant argued that despite the

unanimity instruction, the prosecutor was required to elect the acts upon which it relied

for each of the two section 136.1 counts. (Ibid.) The court rejected this argument,

explaining that an election was not required when the crime fell within the " 'continuous

conduct' " exception. (Id. at p. 882.) Relying on Thompson's analysis of section 273.5,

the Salvato court explained that a "continuous conduct crime" is one where "the

gravamen of the offense lay in the cumulative result of the acts, each of which alone

might not be criminal." (Salvato, supra, 234 Cal.App.3d at p. 882, second italics added;

see Thompson, supra, 160 Cal.App.3d at p. 225.) The court concluded that section 136.1

fell into the "continuous conduct" exception because "the language of section 136.1

focuses on an unlawful goal or effect, the prevention of testimony, rather than on any

particular action taken to produce that end," and noted that the terms " 'Prevent' and

'dissuade' denote conduct which can occur over a period of time as well as

instantaneously." (Salvato, supra, at p. 883, italics added.)

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 Salvato does not support Evans's contention that multiple convictions were

improper here. The Salvato court recognized that section 136.1 could be violated by a

single act, and did not hold or suggest that section 954 barred multiple convictions for

two completed acts of dissuading a witness. In fact, in Salvato, the defendant was

convicted of multiple convictions of section 136.1 despite that the defendant's goal was

the same in all instances—to effectuate a favorable property settlement. (Salvato, supra,

234 Cal.App.3d at pp. 876-878.)

III. Section 654

Evans alternatively contends the court erred in imposing multiple punishments for

counts 1 and 2 and for counts 6 and 7.

Under section 654, "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." (§ 654, subd. (a), italics added.) The statute is

"intended to ensure that defendant is punished 'commensurate with his culpability.' "

(People v. Harrison (1989) 48 Cal.3d 321, 335.)

Two years ago, the California Supreme Court held that "section 654 does not bar

multiple punishment for multiple violations of the same criminal statute." (Correa,

supra, 54 Cal.4th at p. 334, italics added.) In so holding, the court overruled prior case

law applying section 654 to bar punishment on the same criminal offenses, and held that

this new statutory interpretation had prospective application only. (Correa, supra, at pp.

334, 340-344.)

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 Under Correa, section 654 does not bar the imposition of separate punishment for

Evans's two section 273.5 convictions based on counts 1 and 2, and for the two section

136.1 convictions based on counts 6 and 7. Each of these pairs of multiple convictions

was based on the same statute, and thus section 654 is inapplicable.4 (See Correa, supra,

54 Cal.4th at pp. 334, 340-344.)

Additionally, we reject Evans's argument that the court erred in failing to stay the

sentence on Count 3 under section 654. Count 3 involved a vandalism conviction

relating to Evans's breaking down the door when he returned to Zendejas's apartment

after dropping off Zendejas's children at her sister's house. (§ 594, subd. (a).) Evans

argues the punishment on the vandalism count was improper because he had the same

intent and objective as when he committed the crimes in counts 1 and 2 (to assault his

wife).

When applicable, section 654 bars double punishment for multiple offenses that

constitute one indivisible transaction. (People v. Hicks (1993) 6 Cal.4th 784, 788-789.)

However, a defendant may be separately punished for offenses that share common acts

and are part of an indivisible course of conduct if the defendant entertained multiple

criminal objectives. (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)

Whether a course of conduct is indivisible depends on the defendant's intent and

objective rather than the temporal proximity of the offenses. (Hicks, at p. 789.) One

4 On this section 654 issue, defendant's reliance on Johnson, supra, 150 Cal.App.4th
1467 is misplaced. Johnson was decided before Correa and therefore applied the prior
section 654 law that has now been overruled.
15
relevant factor is whether there was an opportunity for the defendant to reflect between

the criminal acts. (People v. Trotter (1992) 7 Cal.App.4th 363, 368.)

In a section 654 analysis, the defendant's intent and objective are factual questions

to be determined by the trial court. (People v. Green (1996) 50 Cal.App.4th 1076, 1085.)

We affirm the court's findings if there is substantial evidence to support them. (People v.

Hutchins (2001) 90 Cal.App.4th 1308, 1312.)

In this case, the evidence supports that Evans had the opportunity to reflect

between breaking down the door and inflicting the final injuries on his wife. Moreover,

there was substantial evidence to support a finding that Evans's purpose in breaking down

the door was different from his intent in assaulting his wife. A reasonable factfinder

could find that Evans broke the door because he wanted to get back inside the residence

where he lived with his wife. Once inside, the couple continued their argument and then

Evans slapped or hit Zendejas. Under these facts, these crimes were not indivisible for

purposes of section 654 analysis.

Based on the determination that section 654 does not bar the separate sentences

here, we need not reach the Attorney General's contention that the issue is not ripe

because the court suspended execution of the sentence.

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 DISPOSITION

Judgment affirmed.

HALLER, Acting P. J.

WE CONCUR:

MCDONALD, J.

MCINTYRE, J.

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