People v. Reed

1

THE PEOPLE, Plaintiff and Respondent, v. JIMMY LEE REED, Defendant and Appellant.

F084268

California Court of Appeals, Fifth District

October 30, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County, No VCF398368 Nathan G. Leedy, Judge.

Richard M. Oberto for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench, and Jamie A. Scheidegger for Plaintiff and Respondent.

OPINION

POOCHIGIAN, J.

Defendant Jimmy Lee Reed was convicted by a jury of one count of attempted murder, one count of assault with force likely to produce great bodily injury (GBI), one count of domestic violence, and one count of attempted criminal threats. The jury also found true the enhancement that defendant had inflicted GBI in circumstances involving domestic violence. In bifurcated proceedings, the trial court found true that defendant had two prior strike convictions for purposes of the "Three Strikes" law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)),^[1] which also qualified as serious felony convictions. After the verdict the trial court denied a motion to dismiss the two prior strikes and the GBI enhancement. The court sentenced defendant to a total term of 30 years to life imprisonment. On appeal, defendant contends that the trial court erred by: (1) not dismissing the GBI enhancement; (2) imposing the upper term sentence of five years on the GBI enhancement; and (3) failing to stay the attempted criminal threats offense pursuant to section 654. We vacate defendant's sentence and remand for resentencing. In all other respects, we affirm.

PROCEDURAL BACKGROUND

On March 26, 2021, the Tulare County District Attorney filed an information charging defendant with: one count of attempted murder (§§ 664, 187, subd. (a); count 1); one count of assault by means of force likely to produce GBI (§ 245, subd. (a)(4); count 2); one count of domestic violence against someone with whom defendant had a former dating relationship (§ 273.5, subd. (a); count 3); and one count of attempted criminal threats (§§ 664, 422; count 4).^[2] For all counts, the information alleged that defendant had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The information alleged that these two strikes also each qualified as prior serious felony convictions (§ 667, subd. (a)(1)). Also, for all counts, the information alleged that defendant committed the offense while on parole (§ 1203.085, subds. (a), (b)). For counts 1 through 3, the information alleged that defendant personally inflicted GBI under circumstances involving domestic violence (§ 12022.7, subd. (e)). Finally, with respect to count 1, the information alleged that defendant acted willfully, deliberately, and with premeditation (§ 664, subd. (a)).

On May 27, 2021, the jury found defendant guilty on all four counts. With respect to count 1, the jury found not true the allegation that defendant acted willfully, deliberately, and with premeditation. For counts one through three, the jury found true the enhancement that defendant personally inflicted GBI in circumstances involving domestic violence. In a bifurcated proceeding, the trial court found not true that defendant had committed the offenses while on parole but found true the allegations that defendant had two prior strike convictions which also qualified as serious felony convictions.

On April 8, 2022, the trial court sentenced defendant on count 1 to a total term of 30 years to life (25 years to life for a third strike (§ 667, subd. (e)(2)(A)(ii)), plus the upper term of five years for the GBI enhancement (§ 12022.7, subd. (e)). The court sentenced defendant to 25 years to life on counts 2 through 4, stayed counts 2 and 3 pursuant to section 664, and ordered count 4 to run concurrently with count 1. Prior to sentencing, the court denied a motion to dismiss the two prior strikes and the GBI enhancement but did not impose the enhancements for the two prior serious felony convictions (§ 667, subd. (a)(1)).

FACTUAL BACKGROUND

On May 21, 2020, defendant and his ex-girlfriend, K.H., were texting while K.H. was getting gas at a local gas station. K.H. testified that she and defendant were an "on-again, off again" couple and that she had agreed that they might "hang out" together that night, even though they both were currently dating other people. As K.H. was pumping gas, defendant arrived at the gas station. Defendant and K.H. began to argue. K.H. testified that she was going to leave, but defendant insisted that she give him a ride. K.H. eventually relented, and the two left the gas station in K.H.'s car. K.H. and defendant quickly began arguing about his new girlfriend and how his new girlfriend had been hit by her old boyfriend. When K.H. said that defendant used force against her (just about everything short of using his fist), defendant denied that he had done so and said," '[T]his is what it is like for me to hit you.'" Defendant then started punching and choking K.H. K.H. estimated that defendant punched her about five times. K.H. was struggling to drive while defendant was attacking her, a task made more difficult because her right hand was in a cast. K.H. began seeing white and tried to claw at defendant's face with her left hand. Defendant "let up" on his assault, and K.H. "slammed" on the brakes. Defendant then told K.H. that he would bury K.H. with Armando, a recently deceased boyfriend. Defendant punched and began choking K.H. again. K.H. testified that she again began to see white and spots, and she could not breathe. K.H. passed out but awoke when she heard the "thump" of her car door slamming. K.H. was slumped over and saw defendant running away.

K.H. testified that she then drove herself home, where her roommate called the police. The police took photos of K.H. and then called for an ambulance. The EMT's examined K.H. K.H.'s face was bruised and swelling, she had bruising around her neck and over other parts of her body, the cast on her right arm was broken, blood had come out of her ears, and the EMT's said that she had a concussion.

DISCUSSION

I. Section 654

A. Parties' Arguments

Defendant argues that the trial court erred by not staying the sentence on count 4 pursuant to section 654. The attempted criminal threats offense was part of the same course of conduct as the attempted murder offense. Both crimes involved the same overarching objective to inflict physical and emotional harm on K.H. because defendant threatened to kill K.H. while he was choking her.

The People argue that the trial court properly found that defendant harbored two intents, the intent to kill for count 1 and the intent to threaten for count 4. The attempted threat did not further or promote the attempted murder, and defendant could have attempted to murder K.H. without saying anything to her. Therefore, substantial evidence supports the court's conclusion that defendant had separate objectives.

We agree with the People that substantial evidence supports the trial court's finding that counts 1 and 4 are not part of an indivisible course of conduct.

B. Additional Information

During closing argument, the prosecutor addressed the basis for count 4. The prosecutor explained: "So what is the criminal threats? The defendant threatened to kill or cause great bodily injury. 'I'm gonna bury you with Armando,' seems pretty clear-cut and dry that was a threat to kill. [¶] [T]he defendant intended his statement be taken as a threat. How else could you take it? Has his hands around her throat telling her what he's going to do in the next few moments."

During sentencing, defense counsel argued that count 4 was part of count 1 and that section 654 required the sentence on count 4 be stayed. The trial court responded that the attempted murder and attempted criminal threats were part of the same course of conduct but involved separate and distinct acts. Defense counsel countered that the same intent was involved for both offenses. The court disagreed and explained: "It's different intent. The intent involved in [c]ount 4 is the intent to threaten somebody. The intent involved in [c]ount 1 is to kill somebody."

C. Legal Standard

Section 654 prohibits "multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) When applicable, section 654 precludes the imposition of concurrent sentences. (People v. Duff (2010) 50 Cal.4th 787, 796.)

"Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective." (People v. Corpening (2016) 2 Cal.5th 307, 311; see People v. Kopp (2019) 38 Cal.App.5th 47, 90, review granted Nov. 13, 2019, S257844.) The first inquiry is whether the crimes were completed by a single physical act. (Corpening, at p. 311; Kopp, at p. 90.) The second inquiry is, if a single physical act is not involved, whether the crimes involve an indivisible course of conduct. (Corpening, at p. 311; People v. Washington (2021) 61 Cal.App.5th 776, 795.) It is the defendant's intent and objective, not the temporal proximity of the offenses, that determine if there is an indivisible course of conduct. (People v. Hicks (1993) 6 Cal.4th 784, 789; see also People v. Jackson (2016) 1 Cal.5th 269, 354.) If the defendant harbors a single intent and criminal objective, then section 654 will apply and permit punishment for only a single offense. (Jackson, at p. 354; K...