Filed 3/19/14 P. v. Garcia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. RICHARD JOSEPH GARCIA, Defendant and Appellant. H039043 (Santa Clara County Super. Ct. No. C1225794)

Defendant Richard Joseph Garcia app eals a judgment of conviction entered following a jury trial. On appeal, defendant asserts the trial court erred in imposing concurrent sentences on an attempted criminal threats charge (Pen . Code, §§ 422, 664) 1 and a battery charge (§§ 242-243, subd (e)) pursuant to section 654.
S TATEMENT OF THE F ACTS AND C ASE This case arises out of a domestic vi olence incident on February 12, 2012, involving defendant and his on-again-off-again girlfriend Olivia Collazo. Around 1:00 a.m., defendant went to the house where Ms. Colla zo was staying and began knocking loudly on the door while yelling fo r Ms. Collazo to come out. Ms. Collazo did not want to see defendant, but went outsid e because defendant seemed angry and she was afraid he would do something to the house.

1 All further statutory references are to the Penal Code.2 After Ms. Collazo went outside to talk to defendant, her cell phone rang. Defendant wanted to know who was calling a nd accused Ms. Collazo of cheating on him, even though they were not a couple at the time. Defendant called Ms. Collazo a “bitch” and demanded to see her phone. When she refused, defendant pulled her to the side of the house and pushed her to the ground. Defendant struggled to take Ms. Collazo’s phone, which was in her pocket at the time. Defendant put his hands around Ms. Collazo’s neck saying, “Why are you do ing this?” and “Are you cheating on me?” Defendant let go of Ms. Collazo’s neck, and reached for his knife, pointing the blade at her saying, “I’m going to cut your face .” Ms. Collazo responded, “Do it.”
Defendant continued to demand to see Ms. Collazo’s phone. Ms. Collazo then threw the phone over the fence. Defenda nt reached over the fe nce and grabbed the phone. Ms. Collazo then started struggling with defendant over th e phone. During the struggle, Ms. Collazo had her hand on the phone and defendant pulled her finger backward, dislocating it. De fendant immediately gave the phone back to Ms. Collazo and said he would take her to the hospital. Ms. Collazo refused to go with him, and defendant eventually left. A few hours later, Ms. Coll azo went to the hospital, a nd hospital personnel called the police. The lower joint on Ms. Collazo’s right middle finger was dislocated, and the ligaments were stretched. Surgery was requir ed to repair the inju ry on March 2, 2012. Defendant was charged with criminal th reats with the personal use of a deadly weapon, a knife (§§ 422, 120 22, subd. (b)(1); count 1), battery in which defendant personally caused great bodily injury (§§ 242- 243, subd. (d), 667, 11 92.7; count 2), false imprisonment (§§ 236-237; count 3), and battery on a person with whom defendant had a dating relationship as a misdem eanor (§§ 242-243, subd. (e); count 4). The information also alleged defendant had a strike prior (§§ 667, subds. (b)-(i), 1170.12), and a prior serious felony conviction (§ 667, subd. (a)).3 Defendant was convicted after a jury trial of attempted criminal threats as a lesser
included offense to co unt 1 (§§ 422, 664), and counts 2 and 4. The jury acquitted
defendant of count 3. The cour t found both allegations of prio r convictions to be true.
The court sentenced defendant to a tota l term of 11 years in state prison as follows: six years on count 2, three years on co unt 1, and one year on count 4, both to run concurrent to count 2, and five years on the serious felo ny allegation, consecutive to
count 2. Defendant filed a notice of appeal.
D ISCUSSION The only issue on appeal is whether secti on 654 requires the concurrent terms for the attempted criminal threats and the misd emeanor battery be stayed. Section 654 provides, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, su bd. (a).) Section 654 prohib its separate punishment for multiple offenses arising from the same act or from a seri es of acts constituting an indivisible course of conduct. ( People v. Rodriguez (2009) 47 Cal.4th 501, 507.)
“Whether a course of criminal conduct is di visible and therefore gives rise to more
than one act within th e meaning of section 654 depends on the intent and objective of the
actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offens es but not for more than one.” ( Neal v. State of California (1960) 55 Cal.2d 11, 19, disa pproved on other grounds in People v. Correa (2012) 54 Cal.4th 333, 334.) On the other hand, if the defendant entertained multiple criminal objectives that were independent an d not incidental to each other, he or she “may be punished for each statutory viola tion committed in pursu it of each objective” even though the violations were otherwise pa rt of an indivisible course of conduct.4 ( People v. Harrison (1989) 48 Cal.3d 321, 335.) “ ‘The principal inquiry in each case is
whether the defendant’s crim inal intent and objective were single or multiple.’ [Citation.] ‘A defendant’s criminal objective is “determined from all the circumstances.” ’ ” ( In re Jose P. (2003) 106 Cal.App.4th 458, 469.) Whether section 654 applies in a given case is a question of fact for the trial court,
which is vested with broad latitude in making its determination. ( People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312 .) Its findings will not be reversed on appeal if there is any substantial evidence to support them. ( Ibid .; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) “We review the tria l court’s determination in the light most favorable to the respondent an d presume the existence of ever y fact the trial court could reasonably deduce from the evidence.” ( People v. Jones (2002) 103 Cal.App.4th 1139, 1143; see People v. Cleveland (2001) 87 Cal.App.4th 263, 2 71 [trial court’s finding of “ ‘separate intents’ ” reviewed for sufficient evid ence in light most favorable to the judgment].) Notwithstanding the trial court’s broad la titude in determining the question of separate intent, the record in this case de monstrates defendant co mmitted the battery with serious injury, the misdemeanor battery and th e attempted criminal threats with a single intent and objective: defendant was trying to take Ms. Collazo’s phone from her to see who had just called. Ms. Colla zo testified at trial that wh en defendant pushed her down, he was trying to grab her phone, and when he put his hands on he r neck, and when he took out his knife, he was also trying to ma ke her give him her ph one. Ms. Collazo’s finger was dislocated while defendant was hold ing her phone and she was trying to take it
back.
Because the crimes defendant committed in this case arose fro m the same course
of conduct and were all for committed for the same objective, section 654 prohibits5 multiple punishment. Therefore, the concu rrent sentences imposed on counts 1 and 4 must be stayed pursuant to section 654.
D ISPOSITION The judgment is modified as follows: th e 3 year term imposed as to count 1, and the 1 year term imposed as to count 4 are st ayed pursuant to Penal Code section 654. As so modified the judgment is affirmed.

__________ _______________ _____________ RUSHING, P.J.

WE CONCUR:

___________________ _________________ PREMO, J.

___________________ _________________ MÁRQUEZ, J.