Filed 6/11/15 P. v. Jeffries CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066293
Plaintiff and Respondent,
v. (Super. Ct. No. SCN318699)
BRYAN JEFFRIES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Sim Von
Kalinowski, Judge. Affirmed as modified and remanded with directions.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L.
Rhodes, Deputy Attorneys General, for Plaintiff and Respondent. This appeal involves a dispute as to whether two counts, which were sentenced
concurrently with the principal term, should have been stayed pursuant to Penal Code1
section 654. The People concede as to one count but contest the other. We agree with
the concession and find the false imprisonment sentence should have been stayed and
will direct the trial court to modify the judgment by staying the sentence on that count.
We will reject appellant's contention that the concurrent sentence for criminal threats
should be stayed.
A jury convicted Bryan Jeffries of one count of robbery (§ 211); one count of false
imprisonment (§ 237, subd. (a)) and one count of criminal threats (§ 422).
The court sentenced Jeffries to the upper term of six years for robbery. It imposed
the upper term of three years on each of the remaining counts and ordered those terms to
be served concurrently with the robbery count.
Jeffries appeals contending the false imprisonment and criminal threat sentences
should have been stayed pursuant to section 654. As we have noted the People agree as
to the false imprisonment count. We are satisfied the criminal threat count involves
separate acts albeit during a prolonged course of conduct. Thus, we conclude section 654
does not apply to the criminal threats count.
1 All further statutory references are to the Penal Code unless otherwise specified. 2 STATEMENT OF FACTS
We first observe that Jeffries does not challenge either the admissibility or the
sufficiency of the evidence to support his convictions. Thus we will provide a limited
statement of facts to give context to the discussion which follows.
The victim in this case, Michael Welch, operates a plumbing business. In October
2012, Welch met Jeffries at a function in Pismo Beach. At some point they discussed
Jeffries working for Welch on a part-time basis.
About a month later, Jeffries contacted Welch and they agreed Jeffries would do
some work for Welch. He would be paid $100 per day and would receive his train fare.
Jeffries did work for Welch for three days and was paid $300 plus train fare.
Jeffries returned to San Diego again in December 2012 on a Sunday evening. He
stayed at Welch's home that night. Jeffries worked Monday and returned to Welch's
home. Welch went out and returned with another person at about 7:30 or 8:00 p.m. that
night. When he returned he found beer cans about the house and Jeffries in an
intoxicated condition.
Welch ordered Jeffries to pack up and leave, at which point Jeffries became
enraged. Once they got into Welch's truck to take Jeffries to the train station, Jeffries
demanded payment, became angry and told Welch he knew where Welch lived.
Welch drove toward Interstate 5. Jeffries demanded $400. As they reached the La
Costa off ramp Jeffries punched Welch in the face and tore Welch's glasses off and threw
them out of the truck. Jeffries continued to make threats, screamed at Welch and grabbed
the steering wheel causing the truck to swerve across lanes on the freeway.
3 Welch ultimately went to an ATM in Carlsbad to get money for Jeffries. Jeffries
continued to threaten and push Welch who was terrified to the point he could not
remember his PIN number. Welch was finally able to withdraw $400 from the ATM and
give it to Jeffries.
As Welch and Jeffries walked toward the truck, Welch was able to escape and run
into a restaurant. Someone called 9-1-1 and police were summoned.
DISCUSSION
We first address the false imprisonment offense. The parties correctly agree this
count should be stayed. Accordingly we find no reason to discuss this count further. We
will thus address the criminal threats count.
A. Legal Principles
Section 654 provides in part: "An act or omission that is punishable in different
ways by different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case . . . be punished under more
than one provision." The method courts must use to comply with the section is to stay
the punishment for those multiple charges. (People v. Cole (1985) 165 Cal.App.3d 41,
53.) As is often the case, the devil is in the detail of deciding whether the "act or
omission" discussed in section 654 is the same in each count.
We review the issue of whether section 654 applies to a charge under the
substantial evidence test. (People v. Wynn (2010) 184 Cal.App.4th 1210, 1215.) We
determine the effect of the factual determination as a question of law to be reviewed de
novo. (People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5.)
4 B. Analysis
Section 654 prohibits multiple punishment for a single physical act that violates
different Penal Code provisions. (People v. Jones (2012) 54 Cal.4th 350, 358; People v.
Mesa (2012) 54 Cal.4th 191, 199 [defendant cannot be punished twice for single act even
if defendant harbored multiple criminal objectives].) Further, when a defendant commits
two or more separate physical acts that violate different Penal Code provisions, the
defendant may not be subjected to multiple punishment if the acts were part of one
indivisible course of conduct. (Ibid.) In contrast, multiple punishment for the multiple
acts is permissible if the transaction is divisible. (People v. Capistrano (2014) 59 Cal.4th
830, 885; People v. Harrison (1989) 48 Cal.3d 321, 335.)
For purposes of section 654, the divisibility of a transaction involving multiple
acts depends on whether the defendant had an independent objective for each offense.
(People v. Capistrano, supra, 59 Cal.4th at pp. 885-886; People v. Jones, supra, 54
Cal.4th at p. 359; People v. Harrison, supra, 48 Cal.3d at p. 335; see People v. Latimer
(1993) 5 Cal.4th 1203, 1212-1213, 1216.) If a defendant had multiple criminal objectives
that were independent of and not merely incidental to each other, he or she may be
punished for each statutory violation committed in pursuit of each objective even though
the violations shared common acts or were parts of an otherwise indivisible course of
conduct. (Harrison, supra, at p. 335.)
Further, even if the defendant has a single overall objective, when there is a
temporal or spatial separation between offenses, giving the defendant time to reflect and
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Filed 6/11/15 P. v. Jeffries 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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066293
Plaintiff and Respondent,
v. (Super. Ct. No. SCN318699)
BRYAN JEFFRIES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Sim Von
Kalinowski, Judge. Affirmed as modified and remanded with directions.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L.
Rhodes, Deputy Attorneys General, for Plaintiff and Respondent. This appeal involves a dispute as to whether two counts, which were sentenced
concurrently with the principal term, should have been stayed pursuant to Penal Code1
section 654. The People concede as to one count but contest the other. We agree with
the concession and find the false imprisonment sentence should have been stayed and
will direct the trial court to modify the judgment by staying the sentence on that count.
We will reject appellant's contention that the concurrent sentence for criminal threats
should be stayed.
A jury convicted Bryan Jeffries of one count of robbery (§ 211); one count of false
imprisonment (§ 237, subd. (a)) and one count of criminal threats (§ 422).
The court sentenced Jeffries to the upper term of six years for robbery. It imposed
the upper term of three years on each of the remaining counts and ordered those terms to
be served concurrently with the robbery count.
Jeffries appeals contending the false imprisonment and criminal threat sentences
should have been stayed pursuant to section 654. As we have noted the People agree as
to the false imprisonment count. We are satisfied the criminal threat count involves
separate acts albeit during a prolonged course of conduct. Thus, we conclude section 654
does not apply to the criminal threats count.
1 All further statutory references are to the Penal Code unless otherwise specified. 2 STATEMENT OF FACTS
We first observe that Jeffries does not challenge either the admissibility or the
sufficiency of the evidence to support his convictions. Thus we will provide a limited
statement of facts to give context to the discussion which follows.
The victim in this case, Michael Welch, operates a plumbing business. In October
2012, Welch met Jeffries at a function in Pismo Beach. At some point they discussed
Jeffries working for Welch on a part-time basis.
About a month later, Jeffries contacted Welch and they agreed Jeffries would do
some work for Welch. He would be paid $100 per day and would receive his train fare.
Jeffries did work for Welch for three days and was paid $300 plus train fare.
Jeffries returned to San Diego again in December 2012 on a Sunday evening. He
stayed at Welch's home that night. Jeffries worked Monday and returned to Welch's
home. Welch went out and returned with another person at about 7:30 or 8:00 p.m. that
night. When he returned he found beer cans about the house and Jeffries in an
intoxicated condition.
Welch ordered Jeffries to pack up and leave, at which point Jeffries became
enraged. Once they got into Welch's truck to take Jeffries to the train station, Jeffries
demanded payment, became angry and told Welch he knew where Welch lived.
Welch drove toward Interstate 5. Jeffries demanded $400. As they reached the La
Costa off ramp Jeffries punched Welch in the face and tore Welch's glasses off and threw
them out of the truck. Jeffries continued to make threats, screamed at Welch and grabbed
the steering wheel causing the truck to swerve across lanes on the freeway.
3 Welch ultimately went to an ATM in Carlsbad to get money for Jeffries. Jeffries
continued to threaten and push Welch who was terrified to the point he could not
remember his PIN number. Welch was finally able to withdraw $400 from the ATM and
give it to Jeffries.
As Welch and Jeffries walked toward the truck, Welch was able to escape and run
into a restaurant. Someone called 9-1-1 and police were summoned.
DISCUSSION
We first address the false imprisonment offense. The parties correctly agree this
count should be stayed. Accordingly we find no reason to discuss this count further. We
will thus address the criminal threats count.
A. Legal Principles
Section 654 provides in part: "An act or omission that is punishable in different
ways by different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case . . . be punished under more
than one provision." The method courts must use to comply with the section is to stay
the punishment for those multiple charges. (People v. Cole (1985) 165 Cal.App.3d 41,
53.) As is often the case, the devil is in the detail of deciding whether the "act or
omission" discussed in section 654 is the same in each count.
We review the issue of whether section 654 applies to a charge under the
substantial evidence test. (People v. Wynn (2010) 184 Cal.App.4th 1210, 1215.) We
determine the effect of the factual determination as a question of law to be reviewed de
novo. (People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5.)
4 B. Analysis
Section 654 prohibits multiple punishment for a single physical act that violates
different Penal Code provisions. (People v. Jones (2012) 54 Cal.4th 350, 358; People v.
Mesa (2012) 54 Cal.4th 191, 199 [defendant cannot be punished twice for single act even
if defendant harbored multiple criminal objectives].) Further, when a defendant commits
two or more separate physical acts that violate different Penal Code provisions, the
defendant may not be subjected to multiple punishment if the acts were part of one
indivisible course of conduct. (Ibid.) In contrast, multiple punishment for the multiple
acts is permissible if the transaction is divisible. (People v. Capistrano (2014) 59 Cal.4th
830, 885; People v. Harrison (1989) 48 Cal.3d 321, 335.)
For purposes of section 654, the divisibility of a transaction involving multiple
acts depends on whether the defendant had an independent objective for each offense.
(People v. Capistrano, supra, 59 Cal.4th at pp. 885-886; People v. Jones, supra, 54
Cal.4th at p. 359; People v. Harrison, supra, 48 Cal.3d at p. 335; see People v. Latimer
(1993) 5 Cal.4th 1203, 1212-1213, 1216.) If a defendant had multiple criminal objectives
that were independent of and not merely incidental to each other, he or she may be
punished for each statutory violation committed in pursuit of each objective even though
the violations shared common acts or were parts of an otherwise indivisible course of
conduct. (Harrison, supra, at p. 335.)
Further, even if the defendant has a single overall objective, when there is a
temporal or spatial separation between offenses, giving the defendant time to reflect and
renew his or her intent, the defendant's decision to continue a course of criminal conduct
5 can support a finding that the defendant entertained multiple criminal objectives. (People
v. Surdi (1995) 35 Cal.App.4th 685, 689; People v. Louie (2012) 203 Cal.App.4th 388,
399.) Also, the courts recognize that " 'at some point the means to achieve an objective
may become so extreme that they can no longer be termed "incidental" and must be
considered to express a different and more sinister goal than mere successful commission
of the original crime.' " (People v. Cleveland (2001) 87 Cal.App.4th 263, 272.)
On appeal, we apply the substantial evidence standard to review the court's
express or implied finding that the defendant had separate objectives while engaging in
the multiple acts. (People v. McKinzie (2012) 54 Cal.4th 1302, 1368-1369.) We view
the evidence in the light most favorable to the court's determination, and presume in
support of the court's conclusion the existence of every fact that could reasonably be
deduced from the evidence. (People v. Cleveland, supra, 87 Cal.App.4th at p. 271.)
The facts here show defendant engaged in multiple acts during the robbery and
criminal threats; thus, this case involves a course of conduct, not a single physical act.
Applying the independent objective test to determine whether the course of conduct is
divisible for purposes of multiple punishment, the record supports the court's implicit
finding that defendant's threatening conduct was so egregious and prolonged that it
reflected a criminal intent independent of his intent to rob. At one point during
sentencing the trial court observed: "[H]ere the crime was much longer [than the typical
robbery] . . . approaching an hour. And included time spent in the car . . . as well as
expended time at the ATM. [¶] . . . It also included striking [the victim] while he was
unable to protect himself while driving his car. Also grabbing the steering wheel from
6 [the victim] causing [the victim] a fear of death, and the criminal threats . . . so terrified
[the victim] that he defecated in his pants."
There is substantial evidence to support a finding that defendant had an intent to
terrorize the victim that was distinct from his intent to rob.
DISPOSITION
The judgment is modified to reflect the sentence for count 2 (false imprisonment)
is stayed pursuant to section 654. The trial court is directed to modify the abstract of
judgment accordingly and to forward an amended abstract to the Department of
Corrections and Rehabilitation. In all other respects the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.