California Court of Appeal Jan 12, 2015 No. D064752Unpublished
Filed 1/12/15 P. v. Sawyer CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D064752
Plaintiff and Respondent,
v. (Super. Ct. No. SCN305905)
FRANKLIN SAWYER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Richard E.
Mills, Judge. Affirmed as modified and remanded with directions.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette and Julie L. Garland,
Assistant Attorneys General, A. Natasha Cortina and Christine Levingston Bergman,
DeputyAttorneys General.
A jury convicted Franklin Sawyer of making a criminal threat (Pen. Code,1 § 422;
count 1), false imprisonment by violence or menace (§§ 236/237, subd. (a); count 3),
evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a); count 4), and
unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a); count 5).
In a bifurcated hearing, Sawyer admitted he suffered two serious felony priors,
two strike priors, and one prison prior. The court dismissed one of the strike priors
pursuant to section 1385. It sentenced Sawyer to a total of 20 years in prison as follows:
a principal term of six years for count 4, consecutive terms of 16 months on the
remaining counts, and 10 years for the serious felony priors. Further, it imposed but
stayed the sentence on the prison prior.
Relying on section 654, Sawyer contends he committed false imprisonment and
criminal threat under a single intent and therefore the sentence on one of those crimes
should be stayed. Further, Sawyer contends the court erred by staying, rather than
striking, the prison prior. We conclude Sawyer had the same objective in committing
both crimes. Accordingly, we affirm the judgment as modified, and remand with
directions.
FACTUAL AND PROCEDURAL HISTORY
On May 18, 2012, Rosa Torres left her car keys in the ignition and stepped out of
her car to throw a bag of garbage in a dumpster. Sawyer took Torres's car without her
permission. Oceanside Police Department Officer Karina Pina responded to a stolen car
1 All statutory references are to the Penal Code unless otherwise noted. 2
report and immediately saw a car matching the description of Torres's car. Officer Pina
turned on her overhead lights and siren. Sawyer drove the vehicle fast and Officer Pina
gave chase. Sawyer maneuvered around cars and went into the opposite lane to pass a
vehicle. Officer Pina accelerated to 70 miles per hour, but could not catch up with
Sawyer until he made a wide turn and crashed. Sawyer ran towards a nearby house and
jumped the fence. Officer Pina called for backup police to set up a perimeter around the
area.
Debbie Osterloh, a resident of a senior community in Oceanside, noticed her dog
lunging at a closed closet door in her room. Osterloh tried to calm her dog by opening
one closet door. Sawyer jumped out of the other closet door, put both of his hands
around Osterloh's neck for approximately a minute and said, "If you yell out, I'll kill
you." Sawyer let go of Osterloh and told her to sit down on the couch. Sawyer asked if
she believed in God and said, "I need your help." Osterloh was afraid and confused and
did not know if Sawyer had a weapon. Sawyer again asked for help and Osterloh told
him to leave. Osterloh saw that police officers were outside her windows. Sawyer put
his hands on her breasts and tilted her below the windowsill. He covered her mouth with
one of his hands and put his other hand on the back of her neck. He again threatened her:
"If you say anything or yell out, I will kill you." Osterloh believed him. Sawyer held her
down for approximately five more minutes.
While police knocked on the front door, Osterloh told Sawyer that all of the police
were in the front yard and he should leave before they went to the backyard. Sawyer left
through the garage, and was apprehended by police. Paramedics treated Osterloh at her
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residence but she elected not to go to the hospital that day. At trial, Osterloh testified the
incident lasted approximately 15 minutes.
The probation officer recommended that section 654 applied because: "[t]he
conduct involved in counts three, four and five all occurred on the same occasion, or
crime spree by the defendant. Based on this, the probation officer has recommended that
the terms in each of those counts be sentenced to be served concurrently with the term
imposed in count one." At sentencing, the court rejected that recommendation, ruling:
"[T]hese are not [section] 654 charges. They're flat out not. It's not even a good
argument legally. It's a good argument maybe morally and strategically, but it's not a
good legal argument."
DISCUSSION
I.
Section 654 Bars Multiple Punishment on Counts 1 and 3
Sawyer contends the count 1 criminal threat facilitated the count 3 false
imprisonment and the two crimes shared the same objective: to prevent Osterloh from
alerting the police.
Applicable Law
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 "precludes multiple
punishment for a single act or omission, or an indivisible course of conduct." (People v.
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Deloza (1998) 18 Cal.4th 585, 591.) If a defendant suffers two convictions and
punishment for one is barred by section 654, "that section requires the sentence for one
conviction be imposed, and the other imposed and then stayed." (Deloza, supra, 18
Cal.4th at pp. 591-592.)
Whether a course of conduct is indivisible for purposes of section 654 depends on
the intent and objective of the defendant, not the temporal proximity of the offenses.
(People v. Hicks (1993) 6 Cal.4th 784, 789; People v. Harrison (1989) 48 Cal.3d 321,
335.) If all the criminal acts were incident to one objective, then punishment may be
imposed only as to one of the offenses committed. (People v. Beamon (1973) 8 Cal.3d
625, 636-639 (Beamon).) If there were multiple objectives, punishment may be imposed
for each crime even if the objectives were furthered by " 'common acts or were parts of
an otherwise indivisible course of conduct.' " (People v. Vidaurri (1980) 103 Cal.App.3d
450, 465.)
Whether section 654 applies in a given case is a question of fact for the court, which
is vested with broad latitude in its determination. (People v. Hutchins (2001) 90 Cal.App.4th
1308, 1312.) We review the court's findings in the light most favorable to the judgment and
will not reverse them on appeal if there is any substantial evidence to support them. (Ibid.)
Evidence is substantial where it is reasonable, credible and of solid value from which a
reasonable trier of fact could make the finding in question. (People v. Snow (2003) 30
Cal.4th 43, 66.) We presume the existence of every fact in support of the court's conclusion
that the trier of fact could reasonably deduce from the evidence. (People v. Cleveland (2001)
87 Cal.App.4th 263, 271.)
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"[T]here can be no universal construction which directs the proper application of
section 654 in every instance." (Beamon, supra, 8 Cal.3d at p. 636.) "Notwithstanding
the apparent simplicity of its language, the applicability of section 654 in a particular case
often involves a difficult analytical problem. [Citation.] Each case must be determined
on the basis of its own facts, and general principles applicable to one type of case may
not apply to another." (In re Adams (1975) 14 Cal.3d 629, 633; see also 3 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 248, pp. 397-399.)
Under section 237, an element of felony false imprisonment is the defendant's "use
of violence, menace, fraud, or deceit." The court instructed the jury regarding the
elements of that offense: "To prove that the defendant is guilty of this crime, the People
must prove that: [¶] 1. The defendant intentionally restrained, confined, or detained
someone or caused that person to be restrained, confined, or detained by violence or
menace; AND 2. The defendant made the other person stay or go somewhere against that
person's will. [¶] Violence means using physical force that is greater than the force
reasonably necessary to restrain someone. Menace means a verbal or physical threat of
harm. The threat of harm may be express or implied."
Although the People also charged Sawyer with committing the lesser included
offense of misdemeanor false imprisonment, and the court instructed the jury on that
6
charge—which did not require the use of force, violence or menace—the jury elected not
to convict Sawyer of the lesser offense.2
Analysis
Giving all deference to the trial court's findings and in light of the facts of the case,
we conclude section 654 bars multiple punishment on counts 1 and 3.
The record shows Sawyer's threat and his false imprisonment of Osterloh were
part of an indivisible course of conduct lasting the entire 15 minutes from the time
Sawyer was discovered in the residence until he left the residence. Osterloh testified
Sawyer grabbed and threatened her almost immediately upon his exiting the closet.
Sawyer threatened to kill Osterloh, thus preventing her from alerting the authorities
regarding his presence. Under these circumstances, section 654 bars double punishment
for a course of conduct constituting one indivisible transaction with one criminal
objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1216 (Latimer); People v. Lee
(1980) 110 Cal.App.3d 774, 785.) The purpose of the protection against multiple
punishment is to ensure that the defendant's punishment will be commensurate with his
criminal liability. (Neal, supra, 55 Cal.2d at p. 20.)
2 The court instructed the jury regarding misdemeanor false imprisonment: "The defendant is charged as a lesser included crime in Count Three with false imprisonment in violation of Penal Code section 237 [subdivision] (a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant intentionally restrained, detained, or confined a person; AND 2. The defendant's act made that person stay or go somewhere against that person's will. [¶] An act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act. [¶] False imprisonment does not require that the person restrained or detained be confined in jail or prison." 7
In Latimer, supra, 5 Cal.4th at p. 1206, the defendant kidnapped the victim, drove
her to a nearby desert area, and raped her twice. The defendant and the victim were
running errands when the defendant drove to an undeveloped area of a nearby desert.
The defendant assaulted the victim and forced her to undress. He raped her and forced
her to orally copulate him. Afterwards, the defendant and the victim got dressed and then
the defendant drove 50 to 75 yards further into the desert and raped her again. The
defendant pleaded nolo contendere to one count of kidnapping and two counts of forcible
rape. (Ibid.) On appeal, he contended his sentence for the kidnapping conviction should
be stayed under section 654. The Supreme Court agreed: "Although the kidnapping and
the rapes were separate acts, the evidence does not suggest any intent or objective behind
the kidnapping other than to facilitate the rapes." (Latimer, at p. 1216.) In this case,
Sawyer was fleeing the police and attempted to prevent Osterloh from alerting the police
of his presence. To accomplish this, Sawyer threatened her and held her down. Just as in
Latimer, there is nothing in the record to indicate Sawyer had any intent behind the
criminal threat beyond facilitating his imprisonment of Osterloh. In this case there is an
even stronger basis to apply section 654 than in Latimer, where the defendant committed
separate acts of rape in separate places.
Citing People v. Nguyen (1988) 204 Cal.App.3d 181, the People argue Sawyer's
gratuitous violence supports imposing separate punishment. Nguyen is distinguishable on
its facts. There, the defendant and his partner robbed a market when the defendant's
partner took the store clerk to the backroom. (Id. at p. 190.) While the defendant was at
the store's till, his partner took the store clerk's valuables, and then forced him to lie on
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the floor in an attempt to forestall any resistance. Once the store clerk was on the ground,
the defendant's partner shot him. (Ibid.) The court concluded that under section 654, the
crimes of robbery and attempted murder should be sentenced separately: " '[A]t some
point the means to achieve an objective may become so extreme they can no longer be
termed 'incidental' and must be considered to express a different and a more sinister goal
than mere commission of the original crime. . . . [¶] . . . [¶] . . . [S]ection [654] cannot,
and should not, be stretched to cover gratuitous violence or other criminal acts far beyond
those reasonably necessary to accomplish the original offense.' " (Nguyen, at p. 191.)
Nguyen is distinguishable because there the defendant's partner had already put the store
clerk in a position to detain him and accomplish the robbery. Shooting the store clerk
was unnecessary to accomplish the defendant's objective. The attempted murder was not
incidental to the robbery.
By contrast, here, Sawyer's criminal threat and his false imprisonment were
committed at the same time and with the single objective of evading police capture.
Further, the prosecutor argued that Sawyer's use of force, violence or menace provided an
element for his false imprisonment conviction. Therefore, he cannot be separately
punished for that use of violence or menace, which the People now describe as
gratuitous.3
3 In arguing for a conviction on the greater offense, the prosecutor stated: "[Osterloh] didn't want to be in this room with [Sawyer]; didn't want to be forced on that bed and forced to sit there with this stranger in her house threatening to kill her who had strangled her, pulled her on the bed, grabbing her by the arm, and was pushing her down on the bed, holding her by the neck. [¶] So all of that is done with violence. I don't think 9
Nor are we persuaded by the People's reliance on People v. Trotter (1992) 7
Cal.App.4th 363, in which the Court of Appeal concluded there was no section 654 error
in the imposition of consecutive sentences for two assaults. (Id. at p. 368.) In Trotter,
the defendant, while fleeing in a taxi from a police officer, fired three shots at the police
car pursuing him. The first two shots were a minute apart, while the third came moments
after the second. (Id. at pp. 365-366.) The appellate court held the trial court did not err
by separately punishing the defendant for the first two shots, and not the third. Each
successive shot by the defendant made his conduct more egregious, and each shot posed a
"separate and distinct risk" to the officer and the freeway drivers. (Id. at p. 368.) It
explained further that "this was not a case where only one volitional act gave rise to
multiple offenses. Each shot required a separate trigger pull." (Ibid.) Unlike in Trotter,
there is no evidence Sawyer's crimes became more "egregious" as they were committed
or that they posed "separate and distinct risk[s]."
II.
One-Year Prison Prior
The People concede, and we agree, that under section 667.5, the trial court erred
by staying, rather than striking, the one-year prison enhancement under section 667.5
subdivision (b) because it served as the basis for one of the serious felony priors under
section 667, subdivision (a)(1), and the latter was a greater sentence. Accordingly, the
there's any dispute over how [Sawyer] falsely imprisoned [Osterloh] in that room and on that bed. He used violence and he used menace to keep her in there."
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one-year prison enhancement must be stricken. (People v. Perez (2011) 195 Cal.App.4th
801, 805, citing People v. Jones (1993) 5 Cal.4th 1142, 1150-1153.)
DISPOSITION
We stay the sentence on making a criminal threat (Pen. Code, § 422; count 1)
pursuant to Penal Code section 654, subdivision (a), and strike the Penal Code, section
667.5 subdivision (b) one-year prison enhancement; as so modified, the judgment is
affirmed. The superior court is directed to prepare an amended abstract of judgment
reflecting these modifications and forward a certified copy to the Department of
Corrections and Rehabilitation.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that Penal Code section 654 bars multiple punishment for criminal threat and false imprisonment because they were part of an indivisible course of conduct with a single objective, and that a prison prior enhancement must be stricken rather than stayed.
Issues
Whether Penal Code section 654 precludes multiple punishment for criminal threat and false imprisonment committed during the same incident.
Whether the trial court erred by staying rather than striking a one-year prison prior enhancement.
Disposition. Affirmed as modified and remanded
Quotations verified verbatim against the opinion
“we conclude section 654 bars multiple punishment on counts 1 and 3.”
“Sawyer's threat and his false imprisonment of Osterloh were part of an indivisible course of conduct”
“the trial court erred by staying, rather than striking, the one-year prison enhancement”