People v. Ward CA4/1

Filed 11/20/14 P. v. Ward CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064330

Plaintiff and Respondent,

v. (Super. Ct. No. SCE320627)

TROY D. WARD,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Allan J.

Preckel, Judge. Affirmed as modified.

Carl Fabian, 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, William Wood and Marvin E.

Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
 A jury convicted defendant Troy Ward of one count of first degree burglary (Pen.

Code § 459,1 count one), two counts of assault by means of force likely to produce great

bodily injury (§ 245, subd. (a)(4)) involving the victims Ms. Buganan (count three) and

Mr. Williams (count four), one count of corporal injury to a former cohabitant or spouse

(§ 273.5, subd. (a), count two), and vandalism under $400 (§ 594, subds. (a) & (b)(2)(A),

count five). In a bifurcated proceeding, the court found true the special allegations that

Ward had a prior conviction within the meaning of former Penal Code section 273.5,

subdivision (e)(1), suffered two prior strike convictions (§§ 667, subds. (b)-(i) &

1170.12), served three prior prison terms (§§ 667.5, subd. (b)), and had two prior serious

felony convictions (§§ 667, subd. (a)(1)).

The court denied Ward's motion to dismiss one or more of his prior strike

conviction allegations, and sentenced him to a term of 35 years to life. Ward contends:

(1) the evidence is insufficient to support his convictions for assault; (2) the absence of

evidentiary support for the assault convictions undermines the burglary conviction; (3)

the court abused its discretion by admitting evidence of his prior conviction for assaulting

Buganan; (4) the court abused its discretion by denying his request to have Buganan's ex-

boyfriend testify; (5) the court's denial of his motion to dismiss a prior strike conviction

allegation under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) was

an abuse of discretion; (6) the court erred when it sentenced him to concurrent terms on

1 All statutory references are to the Penal Code unless otherwise specified.
2
counts two and four and instead should have stayed the sentences on those counts under

section 654; and (7) the court miscalculated his custody credits.

I

FACTS

A. Relationship Between Buganan and Ward

Buganan and Ward were involved in a dating relationship starting in 2009. The

relationship was tumultuous, and they broke up but resumed dating over the years.

During one period of separation in 2010, Ward was sentenced to state prison and served

time after he was convicted of committing domestic violence against Buganan, who

continued to visit Ward while he was incarcerated, however, because she hoped they

could work out their problems and resume a romantic relationship. When Ward was

released from prison in the fall of 2011, Buganan picked him up from the prison and took

him to her house and was intimate with him that night. They resumed their dating

relationship during the next nine months, and he moved into Buganan's mobile home in

the spring of 2012.

B. The Charged Offenses

About one month after Ward moved into Buganan's home, she ended their

relationship and told him to take his possessions and move out. She told Ward she would

put his possessions on the back porch for him to pick up and Ward said he would return

to retrieve them. She put his possessions on the porch and, after about one week, he

retrieved them. Buganan told Ward not to come to her house any more. However, Ward

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continued to come to her home. Buganan believed he entered the mobile home when she

was not there, and also believed he was responsible for using an external water lever to

turn off the water to the mobile home on several occasions.

Buganan began a romantic relationship with Williams around the time she told

Ward to move out in 2011. On a couple of occasions, she dropped Williams off so he

could go inside her mobile home while she parked her car, and Ward approached

Buganan and told her to have "that punk" (referring to Williams) come outside. On the

evening of May 3, 2012, Buganan and Williams were at the mobile home when Buganan

realized the water to the mobile home had again been shut off, and she suspected Ward

was responsible. She went to a sliding glass door in the bedroom, carrying a small

flashlight, to look outside for Ward. Buganan put her eye up to the window to look out

and Ward, standing just outside the door holding a hammer, immediately struck the door

and the glass shattered. Glass flew into Buganan's eye and Ward immediately entered.

Buganan tried to escape from the bedroom into the hallway but Ward stopped her

by grabbing her and shoving her into the corner of the room with such force that it caused

bruising to (and scratches on) her chest. He then put both hands around her neck to

choke her.

Williams, who heard the glass shatter and Buganan scream, rushed into the

bedroom. He saw Ward holding Buganan by the neck against the wall. Ward released

Buganan and turned on Williams who, realizing Ward was about to turn on him, told

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Buganan to leave. Ward grabbed Williams and the two men began wrestling while

Buganan ran outside to summon help.

Williams testified the two men began wrestling and Ward lifted Williams

completely off his feet and threw him through the shattered glass door. Williams landed

outside and jumped to avoid landing on an electrical box but ended up landing on his

head and neck area. He got up as Ward pursued him through the door. Ward punched

him several times in the face and chest as he tried to fight back. The men grappled and

crashed through a neighbor's fence, knocking it down. They both got up, continuing to

wrestle and throw punches, and Ward threw Williams against a shed. The fight

continued and they ended on Buganan's car, with Ward on top. However, Williams

continued to fight back and Ward started to flee. Williams caught and tried to hold him

until the sheriff arrived, but Ward was able to pull away from Williams and run off. The

fight lasted between five and 10 minutes.

A deputy sheriff responding to the scene found Buganan screaming and crying

uncontrollably. The deputy also saw Williams, who was naked, had sustained a cut near

his left eye around the temple area. He also suffered a cut to his leg caused by the glass

when he was fighting Ward on the ground, a "big cut" to his thigh, and cuts on his head,

back and left side of his eye. Approximately one week later, Ward was found near the

mobile home park and arrested.

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 C. Ward's Prior Domestic Violence Against Buganan

During one of their periods of separation, Ward borrowed Buganan's car to go to a

medical appointment. When Buganan could not locate Ward at the place of the

appointment, she (accompanied by her friends Sherri and Elizabeth Rodriguez) went to

Ward's workplace to get her car. Ward opened the gate to allow Buganan and Elizabeth

onto the property while Sherri remained in Buganan's truck. However, Ward was

apparently angry at Buganan and, after Elizabeth went back out the gate, Ward closed the

gate with Buganan still inside, and began assaulting her. He struck her and knocked her

down several times, and threatened to kill her. Sheri and Elizabeth demanded Ward stop

and he let Buganan go, and she started walking back to her truck. However, he followed

her and continued to grab her and knock her down. When she reached the truck, he

grabbed the chain around her neck as though he was going to choke her. He then stopped

the assault and walked back inside the gate.

Buganan walked down the gravel road to locate Elizabeth, who had gone to find

help. Buganan heard Sherri yell, "Run. He's coming down with the car," and they saw

Ward driving toward Buganan "pretty fast." Buganan, fearing Ward would hit her with

the car, first tried to seek shelter in a passerby's vehicle but, when the passerby drove off,

she ran behind a tree and then behind a fence of another residential property. Ward drove

toward her at the fence, coming within a few feet or inches. Buganan obtained assistance

by calling an ambulance from a nearby house, and was treated at the hospital for her

injuries for several hours.

6
 When she testified at his criminal proceedings for the 2010 assault, she was not

completely honest because she thought they could work out their relationship, and

because she was scared he might hurt her when he was released from prison. Similar

reasons led her to discount Ward's actions when she spoke with personnel at the district

attorney's office in connection with the original 2010 case.

D. Defense

Ward testified on his own behalf. At Buganan's invitation, he went to her mobile

home on May 3 to collect his belongings. Buganan invited him inside and told him his

property was in the master bedroom but, when he went to the bedroom, she tried to touch

and hug him. He resisted her advances but he then heard the front door open and

Williams came inside the mobile home, entered the bedroom, and assaulted Ward. They

wrestled and crashed through the glass door and, after a few minutes of fighting, Ward

left because he was violating his parole by being at Buganan's home.

II

ANALYSIS

A. Substantial Evidence Supports the Convictions on Counts Three and Four

Ward argues the evidence was insufficient to support the convictions for assault by

means of force likely to produce great bodily injury, within the meaning of section 245,

subdivision (a)(4), because a rational jury could not have found from the evidence that

the force he applied in his assaults on Buganan and Williams was likely to produce great

bodily injury.

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 Legal Principles

"The proper test for determining a claim of insufficiency of evidence in a criminal

case is whether, on the entire record, a rational trier of fact could find the defendant guilty

beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the

light most favorable to the People and must presume in support of the judgment the

existence of every fact the trier could reasonably deduce from the evidence. [Citation.]

[¶] Although we must ensure the evidence is reasonable, credible, and of solid value,

nonetheless it is the exclusive province of the trial judge or jury to determine the

credibility of a witness and the truth or falsity of the facts on which that determination

depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must

accord due deference to the trier of fact and not substitute our evaluation of a witness's

credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314;

accord, People v. Clark (2011) 52 Cal.4th 856, 943 [substantial evidence includes

circumstantial evidence and any reasonable inferences drawn from that evidence, and the

court must presume in support of the judgment the existence of every fact the trier could

reasonably deduce from the evidence].)

In People v. McDaniel (2008) 159 Cal.App.4th 736, the court explained section

245, subdivision (a)(4), prohibits " 'an assault by means of force likely to produce great

bodily injury, not the use of force which does in fact produce such injury. While . . . the

results of an assault are often highly probative of the amount of force used, they cannot

be conclusive.' [Quoting People v. Muir (1966) 244 Cal.App.2d 598, 604.] Great bodily

8
injury is bodily injury which is significant or substantial, not insignificant, trivial or

moderate. [Citation.] ' " [']The crime . . . , like other assaults, may be committed without

infliction of any physical injury, and even though no blow is actually struck. [Citation.]

The issue, therefore, is not whether serious injury was caused, but whether the force used

was such as would be likely to cause it.['] " ' [Quoting People v. Duke (1985) 174

Cal.App.3d 296, 302, italics omitted by McDaniel.] The focus is on the force actually

exerted by the defendant, not the amount of force that could have been used." (People v.

McDaniel, supra, 159 Cal.App.4th at p. 748.)

"That the use of hands or fists alone may support a conviction of assault 'by means

of force likely to produce great bodily injury' is well established[.]" (People v. Aguilar

(1997) 16 Cal.4th 1023, 1028.) "Whether a fist used in striking a person would be likely

to cause great bodily injury is to be determined by the force of the impact, the manner in

which it was used and the circumstances under which the force was applied." (People v.

McDaniel, supra, 159 Cal.App.4th at pp. 748-749.)

Count Four: The Assault on Williams

Ward argues there was no evidence he assaulted Williams with force likely to

cause great bodily injury because he only threw Williams through a glass door, the glass

of which was already broken, and then grappled with and punched Williams, who

sustained only minor injuries. However, the jury was entitled to consider that Ward was

9
apparently much larger than Williams2 and was able to lift him completely off his feet

when he threw him through the shattered glass door, and that Williams landed on his

head and neck area in an area littered with broken glass, and only fortuitously avoided

substantial injury by twisting to avoid landing on an electrical box. This evidence would

permit a jury to infer that, although Williams in fact avoided more significant injury,

Ward did apply force likely to cause great bodily injury. Moreover, a jury was entitled to

consider that Ward, with his considerable size advantage, punched Williams several

times in the face and chest and threw him against a shed, and that the fight was so fierce

they crashed through and knocked down a neighbor's fence. A rational trier of fact could

conclude that, although Williams's injuries were not more significant, Ward nevertheless

did apply force likely to cause great bodily injury.

Count Three: The Assault on Buganan

Ward asserts there is no evidence from which a jury could have concluded he

assaulted Buganan with force likely to cause great bodily injury. However, there was

some evidence from which the jury could have inferred Ward "knew . . . that he used an

amount of force a reasonable person would realize was likely to result in great bodily

injury" (People v. Wyatt (2010) 48 Cal.4th 776, 779), or that he "act[ed] with awareness

of facts that would lead a reasonable person to realize that great bodily injury would

directly, naturally, and probably result from his act." (Id. at p. 781.) Buganan testified

2 The jury saw both men at trial and, although the reporter's transcript is not explicit
as to their height and weight, the transcript of the 911 call from Buganan included her
descriptions of Ward and Williams suggesting Ward was five inches taller and 90 pounds
heavier than Williams.
10
she went to a sliding glass door in the bedroom carrying a small flashlight to look outside

for Ward and, when she put her eye up to the window to look out, Ward used his hammer

to strike the door and shatter the glass adjacent to her eye, and that glass flew into her

eye. A reasonable jury could have inferred, from the fact that it was dark outside where

Ward stood but illuminated inside when Buganan placed her face against the glass door

to peer out, that Ward was within arm's length of the window and would have seen

Buganan approach and place her eye next to the window but Ward nevertheless swung

the hammer to shatter the glass into her face. A reasonable jury could infer Ward thus

used an amount of force "a reasonable person would realize was likely to result in great

bodily injury" (Id. at p. 779) or, at a minimum, acted "with awareness of facts that would

lead a reasonable person to realize that great bodily injury would directly, naturally, and

probably result from his act." (Id. at p. 781.)

Although the foregoing evidence would suffice to support the conviction, there

was also evidence Ward thereafter continued his assault on Buganan and employed force

likely to result in great bodily injury: Ward shoved her with such force that it caused

bruising to (and scratches on) her chest and put both hands around her neck to choke her.

A rational jury could conclude that commencing to cut off Buganan's air supply was an

application of force likely to cause great bodily injury, and would have in fact caused

great bodily injury but for the fortuity that Williams interrupted Ward's attack on

Buganan.

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 B. Substantial Evidence Supports the Burglary Conviction

Ward argues on appeal that, because the evidence was insufficient to support the

convictions on counts three and four, his conviction for burglary cannot stand because it

is impossible to determine whether the jury relied on the legally infirm theory that Ward

entered to commit the felony of assault likely to cause great bodily injury or on the

legally supported theory that Ward entered to commit the felony of corporal injury to a

former cohabitant or spouse with a prior offense. Our rejection of Ward's contentions as

to the factual sufficiency of the evidence to support the assault convictions is fatal to his

arguments on the burglary count.

More importantly, the burglary conviction would be upheld as long as there was

evidence from which the jury could have inferred Ward entered with the intent of

committing an assault likely to cause great bodily injury, even if he did not actually

commit those crimes. (See, e.g., People v. Novo (1936) 12 Cal.App.2d 525, 528 ["If he

actually entered the house with the intention of committing the felony with which he was

charged he is guilty of burglary even though he abandoned that unlawful purpose one

moment after his entry and in spite of his failure to accomplish his object"]; People v.

Clifton (1957) 148 Cal.App.2d 276, 279 [Where facts permit "a reasonable inference that

appellant entered her apartment with the intent to assault the lady with force likely to

produce great bodily injury[,] . . . [t]he fact that he did not assault her is immaterial. His

crime was complete the moment he entered her home with intent either to steal her

possessions or to do her bodily harm."].) Ward makes no claim that the evidence was

12
insufficient for a rational jury to infer he possessed the requisite intent when he entered,

and this provides an independent ground for affirming his burglary conviction.

C. Excluding Ward's Proffered Third Party Testimony Was Not an Abuse of

Discretion

Ward contends the court abused its discretion when it denied his effort to

introduce the testimony of Mr. Legaux, a former boyfriend of Buganan, and this error

denied him the opportunity to present an effective defense. Ward's offer of proof was

that Mr. Legaux would have testified Buganan was possessive, threatened to have him

arrested when they had a disagreement, and had called the police to their home numerous

times claiming there was a man at her home who would not leave. However, Legaux was

never arrested because, when police arrived and asked Buganan if Legaux had hit her or

touched her, Buganan would invariably say "no." Legaux would also have testified he

had left his possessions at her home, she refused to return the possessions to him and told

him the only way to get them was for Legaux to return to her. The People opposed the

introduction of this evidence and, when the court asked what relevance it had, Ward

argued the evidence was admissible to prove Buganan's intent and modus operandi of

threatening ex-boyfriends with police action unless they did what she wanted. The court

excluded the evidence under Evidence Code section 352 because it had minimal

relevance, would have required an undue consumption of time, and also would have had

the tendency to mislead and confuse the jury.

13
 Ward argues on appeal the evidence was relevant and admissible as a prior false

report under Evidence Code section 1103 to impeach Buganan's credibility. Evidence

Code section 1103, subdivision (a)(1), states, in part, that evidence of a crime victim's

character in the form of "specific instances of conduct" is not inadmissible under section

1101 of the same code where the defendant seeks to prove "conduct of the victim in

conformity" with such evidence in a criminal case. Thus, a prior false accusation of rape

is admissible on a rape victim's credibility (People v. Burrell-Hart (1987) 192

Cal.App.3d 593, 600), and a prior false accusation of sexual molestation is relevant on

the issue of the molest victim's credibility. (People v. Tidwell (2008) 163 Cal.App.4th

1447, 1457.) However, that evidence is subject to exclusion under Evidence Code

section 352 if the probative value of the evidence is substantially outweighed by the

probability that its admission would require the undue consumption of time, confuse the

issues or mislead the jury. (People v. Stitely (2005) 35 Cal.4th 514, 547 & fn. 15; People

v. Tidwell, supra.) A court's determination to exclude evidence under section 352 will

not be reversed absent an abuse of discretion. (People v. Basuta (2001) 94 Cal.App.4th

370, 386.)

We conclude the exclusion of the evidence here was not an abuse of discretion.

The issue here was whether Buganan (as well as Williams) truthfully described Ward's

assaultive conduct. The only potential relevant "prior false report" evidence would be

evidence that Buganan would exact retribution against a former boyfriend by calling

police and then falsely accusing the boyfriend of assaultive behavior to have him arrested

14
and prosecuted for crimes he had not committed. Legaux's testimony, although it would

have established Buganan called the police to their home numerous times, would have

shown the opposite because Legaux would have testified that on every occasion Buganan

did not falsely accuse him of assaultive behavior to have him arrested but instead

truthfully told police that Legaux had not hit her or touched her. We do not conclude the

exclusion of such evidence was an abuse of the trial court's discretion, or that it denied

Ward his right to present a defense.

D. The Court Did Not Abuse Its Discretion by Admitting Evidence Surrounding

Ward's Prior Conviction for Assaulting Buganan

Ward contends the court abused its discretion when it overruled his objection

under Evidence Code section 352 to admitting the underlying facts surrounding his 2010

assault conviction. He argues Buganan's testimony had minimal probative value because

of its internal inconsistencies, it was unduly prejudicial, it required an undue consumption

of time and was likely to confuse the issues.

"Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's

disposition to commit such acts. (Evid. Code, § 1101.) However, the Legislature has

created exceptions to this rule in cases involving sexual offenses (Evid. Code, § 1108)

and domestic violence (Evid. Code, § 1109)." (People v. Reyes (2008) 160 Cal.App.4th

246, 251.) Section 1109 represents a policy determination by the California Legislature

that considerations favoring the exclusion of evidence of uncharged domestic violence

offenses "are outweighed in criminal domestic violence cases by the policy

15
considerations favoring the admission of such evidence" (People v. Johnson (2000) 77

Cal.App.4th 410, 420), and in effect permits admission of evidence of a defendant's other

acts of domestic violence for the purpose of showing his propensity to commit such

crimes. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028.) Although such

evidence can be admitted under section 1109, it is subject to exclusion under section 352,

and the court's ruling under section 352 is reviewed for abuse of discretion. (People v.

Brown (2011) 192 Cal.App.4th 1222, 1232.)

Ward argues Buganan's testimony concerning the incident lacked any probative

value because (1) Buganan told personnel at the district attorney's office (in connection

with the original 2010 case) Ward had not driven a car at her or assaulted her, and he was

not guilty of the charges; (2) she provided false testimony at his preliminary hearing; and

(3) a third person told a defense investigator that Buganan said Ward was not guilty of

the 2010 assault. However, Buganan proffered reasons for why she made statements in

2010 minimizing Ward's culpability, and it was for the jury to determine whether these

reasons credibly explained why her current version of the events differed from her 2010

statements. The fact a jury must determine a witness's credibility does not mean the

witness's testimony lacks probative value ab initio.

Ward also argues, even if there was some probative value to the evidence, the risk

of undue prejudice and undue consumption of time was so high that it clearly outweighed

the probative value of the evidence, and therefore it was an abuse of discretion to admit

the evidence. However, propensity evidence under section 1109, particularly when it

16
involves the same victim, is "highly relevant and probative of the issues in this case"

(People v. Hoover, supra, 77 Cal.App.4th at p. 1029), and the jury's knowledge that Ward

was punished for this earlier assault "substantially mitigates the kind of prejudice usually

associated with the introduction of prior bad act evidence." (People v. Jennings (2000)

81 Cal.App.4th 1301, 1315.) Although admission of the evidence did involve an

additional consumption of time, we conclude it was not an abuse of discretion for the

court to conclude the probative value of the evidence warranted the additional time

necessary to present the evidence.

E. The Romero Claim

Ward contends the court abused its discretion when it rejected his motion to

dismiss one or more of his prior strike conviction allegations under Romero, supra, 13

Cal.4th 497.

Discretion to Dismiss

A trial judge may dismiss a prior strike conviction allegation in the furtherance of

justice under section 1385. (Romero, supra, 13 Cal.4th 497.) In doing so, trial courts are

bound to follow the general principles regarding the exercise of discretion developed in

the law under section 1385. When evaluating whether to dismiss prior strike conviction

allegations, a court must consider both the interests of the defendant as well as those of

the public as represented by the prosecutor. (People v. Orin (1975) 13 Cal.3d 937, 945.)

Judges making such decisions should be influenced by those factors that would convince

17
a reasonable trial judge to reach the same conclusion. (Ibid.; People v. Williams (1998)

17 Cal.4th 148, 159.)

People v. Carmony (2004) 33 Cal.4th 367 (Carmony) determined a trial court's

decision not to dismiss a prior strike conviction allegation under section 1385 is reviewed

under "the deferential abuse of discretion standard." (Carmony, at p. 371.) Carmony

explained that when reviewing a decision under that standard, an appellate court is guided

"by two fundamental precepts. First, ' "[t]he burden is on the party
attacking the sentence to clearly show that the sentencing decision
was irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve
legitimate sentencing objectives, and its discretionary determination
to impose a particular sentence will not be set aside on review." '
[Citations.] Second, a ' "decision will not be reversed merely
because reasonable people might disagree. 'An appellate tribunal is
neither authorized nor warranted in substituting its judgment for the
judgment of the trial judge.' " ' [Citations.] Taken together, these
precepts establish that a trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable
person could agree with it." (Id. at pp. 376-377.)

The court in Carmony stressed that in determining whether a trial court acted

"irrationally or arbitrarily in refusing to strike a prior conviction allegation," the

reviewing court must consider the refusal in the context of the legal principles and

policies regarding the particular law under which the discretionary exercise of authority

was sought. (Carmony, supra, 33 Cal.4th at p. 377.) In Carmony, as here, the three

strikes law (§ 667, subds. (b)-(i)) was the pertinent law for this inquiry. (Carmony, at

p. 377.)

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 In reviewing the three strikes law, Carmony reiterated its observation made in

Romero that the law was " 'intended to restrict courts' discretion in sentencing repeat

offenders.' " (Carmony, supra, 33 Cal.4th at p. 377.) Carmony also repeated its

requirement set out in Williams that a trial court " 'must consider whether, in light of the

nature and circumstances of [the defendant's] present felonies and prior serious and/or

violent felony convictions, and the particulars of his background, character, and

prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part,

and hence should be treated as though he had not previously been convicted of one or

more serious and/or violent felonies . . .' [citation]" before exercising its discretion to

dismiss a prior strike allegation. (Carmony, at p. 377.)

The court in Carmony further explained that because a trial court's adherence to

the provisions of the three strikes law creates a strong presumption the trial court was not

abusing its discretion in refusing to dismiss a prior strike conviction allegation for

purposes of sentencing under that scheme, "a trial court will only abuse its discretion in

failing to strike a prior felony conviction allegation in limited circumstances[, such as]

where the trial court was not 'aware of its discretion' to dismiss [citation], or where the

court considered impermissible factors in declining to dismiss [citation,] [or where] 'the

sentencing norms [established by the three strikes law may, as a matter of law, produce]

an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular

case." (Carmony, supra, 33 Cal.4th at p. 378.)

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 Evaluation

Ward has not clearly shown the sentencing court abused its discretion. The trial

court was aware of its discretion to dismiss the prior strike conviction allegation and

Ward does not suggest the court considered any impermissible factors in declining to do

so. The probation report and argument from counsel fully informed the court of Ward's

criminal history and current offense, and the trial court was aware of its discretion to

dismiss and did not consider any impermissible factors in declining to dismiss. The

record showed Ward had served many years in prison (and violated parole multiple

times), been incarcerated most of the time since 1997, twice attacked women after being

released from prison even before the instant offense, and again attacked Buganan less

than a year after being released from prison, all of which provided support for the

conclusion Ward was not a person outside the spirit of the three strikes law.

Ward asserts the facts of the present crime do not warrant a life sentence because

they did not involve great bodily injury, were crimes involving passion, and it was merely

fortuitous that it occurred in Buganan's home rather than on the street. Moreover, he

argues one of his earlier crimes was of ancient vintage, and the other arose from the same

dysfunctional relationship with Buganan as the present offense, which showed he was not

a danger to the community.3 However, our role is not to decide the merits of his motion

3 Ward also appears to complain the court's ruling provided no insight into what
animated its ruling. However, a trial court is not required to state reasons for denying a
Romero motion. Although "a court must explain its reasons for striking a prior
[citations], no similar requirement applies when a court declines to strike a prior
[citation]. 'The absence of such a requirement merely reflects the legislative presumption
20
anew, but rather to assess whether the court abused its discretion in balancing "the nature

and circumstances of the defendant's present felonies and prior serious and/or violent

felony convictions, and the particulars of [the defendant's] background, character, and

prospects." (People v. Williams, supra, 17 Cal.4th at p. 161.) "The concept of discretion

implies that, at least in some cases, a decision may properly go either way." (In re Large,

supra, 41 Cal.4th at p. 553.) The fact Ward may articulate good arguments for

dismissing a prior strike conviction allegation in the furtherance of justice does not

require reversal. (Carmony, supra, 33 Cal.4th at p. 378 [it is not enough to show that

reasonable people might disagree about whether to dismiss one or more prior conviction

allegations].)

The record reflects the court was fully aware of its discretion to dismiss a prior

strike conviction allegation for purposes of sentencing under the three strikes scheme but

declined to exercise its section 1385 discretion. We conclude the trial court did not abuse

its discretion by denying Ward's Romero motion.

F. The Section 654 Claim

Ward contends the court erred when it sentenced him to concurrent terms on

counts two and four and instead should have stayed the sentence on counts two and four

that a court acts properly whenever it sentences a defendant in accordance with the three
strikes law.' [Citation.] 'Thus, the three strikes law not only establishes a sentencing
norm, it carefully circumscribes the trial court's power to depart from this norm and
requires the court to explicitly justify its decision to do so. In doing so, the law creates a
strong presumption that any sentence that conforms to these sentencing norms is both
rational and proper.' " (In re Large (2007) 41 Cal.4th 538, 550.)

21
under section 654.4 He asserts that because the burglary on which he was sentenced was

based on his entry with the intent to commit the underlying felonies of assaulting

Buganan and Williams, his sentence on the burglary necessarily requires punishment on

these underlying felonies be stayed under section 654 pursuant to People v. Hester (2000)

22 Cal.4th 290, 294 (Hester) and People v. Islas (2012) 210 Cal.App.4th 116, 130 (Islas).

Although the People concede the analogous decision in Islas, supra, as well as dicta in

Hester, supra, requires the sentence on count two be stayed under section 654, they

contend the unstayed sentence on count four was properly imposed.

Section 654

Section 654, subdivision (a), states, "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 bars double

punishment, including concurrent sentences, for a course of conduct constituting one

indivisible transaction with one criminal objective. (Neal v. State of California (1960) 55

Cal.2d 11, 19 (Neal), disapproved in part by People v. Correa (2012) 54 Cal.4th 331,

4 On the principal term, the court sentenced Ward to 25 years to life on the burglary
conviction and two 5-year terms, to be served consecutively, for each of the serious prior
felony conviction allegations found true. The court also imposed a term of eight years on
the corporal injury to cohabitant conviction (count two), which it ordered to run
concurrent to the principal term, and imposed but "given the conviction [on] count two"
stayed (pursuant to § 654) a six-year term for the assault count (count three) involving the
same victim as involved in count two. The court also imposed a term of six years for the
assault conviction involving the victim Williams (count four), which it also ordered to
run concurrent to the principal term.
22
334, 343-344; People v. Latimer (1993) 5 Cal.4th 1203; People v. Lee (1980) 110

Cal.App.3d 774, 785.) " 'It is defendant's intent and objective, not the temporal proximity

of his offenses, which determine whether the transaction is indivisible. [Citations.] . . .

[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.' " (People v. Hicks (1993) 6 Cal.4th 784, 789,

quoting People v. Harrison (1989) 48 Cal.3d 321, 335.) However, when the evidence

permits the conclusion the defendant harbored " 'multiple criminal objectives . . .

independent of and not merely incidental to each other, the trial court may impose

punishment for independent violations committed in pursuit of each objective even

though the violations shared common acts or were parts of an otherwise indivisible

course of conduct.' " (People v. Akins (1997) 56 Cal.App.4th 331, 338-339.)

Section 654 does not preclude multiple punishments under certain circumstances.

For example, it does not preclude multiple punishments where the defendant's course of

conduct, even though directed to one objective, is divisible in time. (People v. Gaio

(2000) 81 Cal.App.4th 919, 935 [§ 654 does not bar punishment where temporal

separation of offenses afford defendant opportunity to reflect and to renew his or her

intent before committing next offense].) More importantly, under the so-called "multiple

victims" exception, section 654 does not preclude multiple punishments where "the

criminal act―that is, the crime of which defendant was convicted . . .―was defined by

statute to proscribe an act of violence against the person, that is, as Neal, supra, 55 Cal.2d

23
at page 20, put it, an act of violence committed 'with the intent to harm' or 'by [a] means

likely to cause harm' to a person." (People v. Hall (2000) 83 Cal.App.4th 1084, 1089

(Hall) italics added by Hall, disapproved on other grounds by People v. Correa, supra,

54 Cal.4th at pp. 343-344.) Neal explained that permitting separate punishments for an

act of violence against multiple victims accords with the underlying purpose of section

654's proscription of "insur[ing] that the defendant's punishment will be commensurate

with his criminal liability. A defendant who commits an act of violence with the intent to

harm more than one person or by a means likely to cause harm to several persons is more

culpable than a defendant who harms only one person. For example, a defendant who

chooses a means of murder that places a planeload of passengers in danger, or results in

injury to many persons, is properly subject to greater punishment than a defendant who

chooses a means that harms only a single person. This distinction between an act of

violence against the person that violates more than one statute and such an act that harms

more than one person is well settled. Section 654 is not '. . . applicable where . . . one act

has two results each of which is an act of violence against the person of a separate

individual.' " (Neal, supra, 55 Cal.2d at pp. 20-21, quoting People v. Brannon (1924) 70

Cal.App. 225, 235-236.)

On appeal, we view the evidence most favorably to the court's sentencing decision

and presume in support of the order the existence of every fact the court could reasonably

deduce from the evidence. (People v. McGuire (1993) 14 Cal.App.4th 687, 698.) The

"trial court's implied finding that a defendant harbored a separate intent and objective for

24
each offense will be upheld . . . if it is supported by substantial evidence." (People v.

Blake (1998) 68 Cal.App.4th 509, 512; accord, People v. Herrera (1999) 70 Cal.App.4th

1456, 1466, disapproved on other grounds by People v. Mesa (2012) 54 Cal.4th 191,

199.)

Analysis

Ward asserts that because the burglary on which he was sentenced was based on

his entry with the intent to commit the underlying felonies of assaulting Buganan and

Williams, his sentence on the burglary necessarily requires that punishment on these

underlying felonies be stayed under section 654 pursuant to Islas, supra, 210 Cal.App.4th

116, and Hester, supra, 22 Cal.4th 290. In Islas, the defendant was convicted of five

counts of false imprisonment as well as one count of burglary, and the burglary

conviction was premised on the defendant's entry into the apartment with the intent of

committing the underlying felonies of false imprisonment. (Islas, at p. 129.) The Islas

court (citing numerous cases including the dicta in Hester) concluded the sentences on

the false imprisonment counts were required to be stayed under section 654, explaining

that "the burglary conviction was based entirely on entry with the intent to commit felony

false imprisonment. When a defendant is convicted of burglary and the intended felony

underlying the burglary, section 654 prohibits punishment for both crimes. [Citations.]

Because the felony underlying the burglary conviction was felony false imprisonment,

the trial court should have stayed the terms imposed for felony false imprisonment." (Id.

at p. 130.) Ward asserts, and the People concede, that because Ward's burglary

25
conviction was based on his intent to commit the underlying felonious assault on

Buganan, Islas requires the sentence on count two be stayed under section 654.

Ward argues, and the People dispute, the sentence on count four should have been

stayed for the same reason. We conclude the trial court could properly have imposed a

concurrent sentence on count four because the evidence, viewed most favorably to the

court's sentencing decision and presuming the existence of every fact the court could

have reasonably deduced from the evidence, would support an implied finding Ward

harbored a separate intent and objective for the assault on Williams than he held for the

burglary. (People v. Blake, supra, 68 Cal.App.4th at p. 512.) The court could have

concluded Ward entered with the intent of attacking Buganan, but not Williams, because

he lurked outside until he spotted Buganan peering through the window and only then

broke the glass and commenced assaulting Buganan, and he spoke no words nor took any

actions suggesting he was also hunting Williams that night, but instead directed his attack

solely to Buganan. It was only after Williams rushed in that he released Buganan and

turned on Williams, from which the court could have inferred Ward formed the new

intent and objective of assaulting Williams. While these events did follow closely, "[i]t is

defendant's intent and objective, not the temporal proximity of his offenses, which

determine whether the transaction is indivisible." (People v. Hicks, supra, 6 Cal.4th at p.

789.)

As an independent ground for affirmance, we also note it appears the "multiple

victims" exception to section 654 would permit imposition of a separate sentence on

26
count four. There were multiple victims of Ward's attack here, and the courts have

observed that multiple punishments are permitted when "the criminal act―that is, the

crime of which defendant was convicted . . .―was defined by statute to proscribe an act

of violence against the person." (Hall, supra, 83 Cal.App.4th at p. 1089.) Ward quotes

Hall for the assertion that " '[b]urglary, standing alone, is not a violent crime for purposes

of [applying] the multiple victim exception' " (Hall, supra, 83 Cal.App.4th at p. 1090),

and argues (citing People v. Centers (1999) 73 Cal.App.4th 84, 99) that burglary qualifies

as a violent crime for purposes of applying the multiple victim exception only if the

defendant actually inflicted great bodily injury during the commission of the burglary or

personally used a firearm. Although Centers cited other cases that held burglary qualifies

as a violent crime for purposes of applying the multiple victim exception when the

defendant actually inflicted great bodily injury during the commission of the burglary,

and ultimately held burglary qualifies as a violent crime for purposes of applying the

multiple victim exception when the defendant personally uses a firearm (id. at pp. 99-

100), Centers did not hold multiple punishments were improper absent actual infliction of

great bodily injury or personal use of a firearm.

The crime of which Ward was convicted in count four is defined as assault by

means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), and Neal

specifically stated that permitting separate punishments for an act of violence against

multiple victims accords with the underlying purpose of section 654's proscription of

"insur[ing] that the defendant's punishment will be commensurate with his criminal

27
liability. A defendant who commits an act of violence with the intent to harm more than

one person or by a means likely to cause harm to several persons is more culpable than a

defendant who harms only one person. For example, a defendant who chooses a means

of murder that places a planeload of passengers in danger, or results in injury to many

persons, is properly subject to greater punishment than a defendant who chooses a means

that harms only a single person. This distinction between an act of violence against the

person that violates more than one statute and such an act that harms more than one

person is well settled. Section 654 is not '. . . applicable where . . . one act has two results

each of which is an act of violence against the person of a separate individual.' " (Neal,

supra, 55 Cal.2d at pp. 20-21, quoting People v. Brannon, supra 70 Cal.App. at pp. 235-

236, italics added.) Because the crime of which Ward was convicted (1) involved a

separate victim and (2) involved (by statutory definition) the employment of "means of

force likely to produce great bodily injury," the crime appears to fall within Neal's

rationale for applying the multiple victim exception. We conclude, for both of the above

reasons, the sentence of a concurrent term for Ward's conviction on count four was

proper.

G. The Custody Credit

Ward argues he is entitled to one extra day of custody credit on his sentence, and

the People dispute that claim. Ward was arrested on May 9, 2012, and was sentenced on

May 31, 2013. A defendant is entitled to custody credits for the time served in county

jail prior to sentencing, including partial days. (People v. Rajanayagam (2012) 211

28
Cal.App.4th 42, 48.) Calculation of custody credit begins on the day of arrest and

continues through and including the day of sentencing. (People v. Bravo (1990) 219

Cal.App.3d 729, 735.) There are 388 days starting on May 9, 2012, and ending on

May 31, 2013, but Ward was only awarded 387 days of credits. Ward is entitled to an

extra day of custody credit.

DISPOSITION

The judgment is modified as follows: the sentence on count two is stayed pending

successful service of the balance of defendant's sentence, at which time the stay shall

become permanent. (See People v. Hall, supra, 83 Cal.App.4th at pp. 1096-1097.)

Additionally, the sentence is amended to reflect defendant is entitled to 388 days of

custody credits. As so modified, the judgment is affirmed. The trial court shall prepare a

corrected abstract of judgment and forward a copy to the Department of Corrections and

Rehabilitation.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.

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