Filed 11/20/14 P. v. Ward CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 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
3 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
4 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.
5 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.
7 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.
11 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.)
18 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.)
19 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.)
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.