People v. Gasway CA3

Filed 3/24/14 P. v. Gasway CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento)

THE PEOPLE, C074765

Plaintiff and Respondent, (Super. Ct. No. 13F02421)

v.

ANDREW JAMES GASWAY,

Defendant and Appellant.

A jury convicted defendant Andrew James Gasway of criminal threats (Pen. Code, § 422)1 and corporal injury to a cohabitant (§ 273.5, subd. (a)). Defendant admitted two prior prison term allegations (§ 667.5, subd. (b)) and the trial court sentenced him to five years eight months in state prison. The sole issue on appeal is whether the trial court erred in failing to stay the sentence for the criminal threats count pursuant to section 654. We affirm.

1 Undesignated statutory references are to the Penal Code.

1

FACTS Yasmea West was 20 years old at the time of the trial.2 She knew defendant for many years, and started dating him in January 2013. Her nickname for him was A. J. West moved into an apartment near her mother’s house in late March or early April 2013. Defendant lived with her but did not sign the rental agreement. West testified that on April 16, 2013, defendant came into the kitchen while she was making dinner and asked her to make some Thai food. West told defendant she was making something else; defendant walked away, making “little comments under his breath that pretty much he was going to go eat at another female’s house.” According to West, she told defendant that he could take his belongings “while he’s at it.” Defendant and West then began to curse at each other. As the argument continued, West started putting defendant’s clothes inside his suitcase. Defendant took West’s cell phones from a counter and put them in his pocket. West told defendant not to take the phones, which initiated an argument about the phones. West tried to grab the phones but defendant prevented her, which led her to swear at him and resume packing his belongings. Defendant followed West into the bedroom, saying he did not have to go. West told defendant she would call the police if he did not leave. When she turned to the front door, defendant stopped West by grabbing her upper arms, which hurt her. Defendant turned away and West hit him in the head. She and defendant “start[ed] going at it.” West soon had an asthma attack; defendant grabbed her inhaler and West ran out of the apartment to get air. West went out of the apartment and walked downstairs; defendant rushed down the stairs to give her the inhaler and grabbed West’s back. West refused the inhaler and