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People v. Estrella1/13/2005
rs agree the defendant committed.'" (Ibid.)
Here, no unanimity instruction was required because to prove the charge the prosecutor relied on defendant's threat to kill Alma and cut her "in pieces." In closing argument, the prosecutor told the jury, "Here are the elements that have to be proved in order to prove this crime. There are five. [ ] The person willfully threatened to commit a crime which would result in death or great bodily injury. [ ] The statement, `I'm going to cut you up in little pieces,' that's a threat. `I'm going to cut you up in little pieces.' `I'm going to kill you.' Death or great bodily injury? Yes."
Shortly thereafter, the prosecutor also told the jury, "But if you look at what she went through that night, the threats that he made to her, I'm going to cut you up in little pieces -- you know, it sounds horrifying. I'm going to cut you up in little pieces. You think, gosh, who would do that? [ ] But what else was he doing at the same time he made those threats? He was driving 100 miles an hour on the freeway and he was completely out of control. He had nothing to lose. So of course she was in fear." In discussing the criminal threat charge, the prosecutor did not mention defendant's threat to kill Alma if she got out of the car at the liquor store in Corona. Defense counsel also discussed only the threat to kill Alma "in pieces" in addressing the criminal threat charge. Thus, the trial court did not err in failing to give CALJIC No. 17.01 or a substantially similar unanimity instruction.
E. Defendant's Concurrent Sentences Violate Section 654's Ban on Multiple Punishment
As noted, defendant was sentenced to 16 years for the kidnapping conviction (count 4), which the trial court designated as the principal count. Defendant contends the concurrent sentences on counts 1, 2, and 6 for, respectively, spousal abuse, assault, and criminal threat, violate section 654's prohibition on multiple punishment and must therefore be stayed. He argues that the kidnapping and subordinate counts were part of a continuous course of conduct and were motivated by a single intent and objective of assaulting and threatening Alma.
We do not address defendant's contention as it pertains to count 2, the assault conviction. As discussed above, the assault conviction (count 2) must be reversed because it is a lesser included offense to the spousal abuse conviction (count 1).
We agree with defendant that the concurrent sentences on counts 1 and 6 violate section 654, because we conclude that substantial evidence does not support the trial court's implied finding that the counts involved multiple criminal objectives.
Section 654, subdivision (a), provides that " n 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." And, " hether a course of criminal conduct is divisible and therefore gives rise to more than one act within the 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 offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19, italics added.) But, " f [a defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished 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."
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