PEOPLE v. WISDOM

No. D055621.

THE PEOPLE, Plaintiff and Respondent, v. IAN DAMIAN WISDOM, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

AARON, J.

I.

INTRODUCTION

After a bench trial, the trial court found Ian Damian Wisdom guilty of torture (Pen. Code, § 206)1 (count 2); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 3); assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) (counts 4 and 31); false imprisonment by violence, menace, fraud, or deceit (§§ 236, 237, subd. (a)) (counts 5 and 33); making a criminal threat (§ 422) (count 6); forcible oral copulation (§ 288a, subd. (c)(2)) (counts 7, 9, and 11); rape by a foreign object (§ 289, subd. (a)(1)) (counts 17 and 23); forcible rape (§ 261, subd. (a)(2)) (counts 27 and 29); assault with intent to commit rape (§ 220, subd. (a)) (count 32); sexual battery by restraint (§ 243.4, subd. (a)) (count 34); and possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) (count 35). The court also found true numerous enhancement allegations pertaining to the possession and use of weapons, and the infliction of great bodily injury. The court found that Wisdom committed several of the sex offenses under circumstances enumerated in the One Strike law (§ 667.61), and that Wisdom had suffered a prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a strike prior (§§ 667, subds. (b)-(i), 668, 1170.12). The court sentenced Wisdom to a total aggregate term of 410 years to life in prison.

On appeal, Wisdom's sole claim is that the trial court erred in failing to stay execution of the sentences on count 6 (making a criminal threat) (§ 422) and count 33 (false imprisonment by violence, menace, fraud, or deceit) (§§ 236, 237, subd. (a)), pursuant to section 654. We affirm the judgment.

II.

FACTUAL BACKGROUND2

A. The prosecution's case

In September 2007, S.K. met Wisdom at an Alcoholics Anonymous meeting. The two began dating in December 2007. After a couple of months, S.K. ended the relationship. Wisdom wanted to continue the relationship. On the evening of February 29, 2008, S.K. agreed to see Wisdom. Wisdom and S.K. decided to purchase some alcohol and cocaine and then go to S.K.'s residence. S.K. and Wisdom arrived at S.K.'s apartment at approximately 9:00 p.m. that evening.

After injecting himself with cocaine, Wisdom unexpectedly struck S.K. in the face with his hand, causing her to bleed. S.K. believed that Wisdom had broken her nose. Wisdom then shoved his penis in S.K.'s face and ordered her to orally copulate him. Wisdom continued to physically and sexually assault S.K. over a period of several hours. Wisdom struck S.K. in the face with his fists multiple times, struck S.K. in the face with a fire extinguisher, kicked her in the ribs, threatened her with a knife, threatened to kill her, and forcibly injected her with cocaine. Wisdom also penetrated S.K.'s anus and vagina with his penis several times, and repeatedly forced her to orally copulate him.

At approximately 1:00 a.m., a friend of S.K.'s, Natalie S. (Natalie), knocked on the door of the residence. Wisdom told S.K. to get into the bed and to cover her face. Wisdom opened the door and allowed Natalie to enter. Once Natalie was inside the apartment, Wisdom repeatedly accused Natalie of being an undercover police officer. Wisdom shoved Natalie down on a couch, told her that he was going to "fuck" her, and began to remove his clothes. Natalie pretended to vomit, and asked for some water. Natalie and Wisdom went into the kitchen. While in the kitchen, Wisdom injected himself with cocaine and grabbed a knife. Wisdom slowly ran the knife across the outside of Natalie's clothes, while telling her that he was going to have sex with her. Wisdom placed the knife inside his boxer shorts and put his hands on Natalie's breasts and bottom. Natalie grabbed the knife from Wisdom, and the two began to struggle for the knife. During the struggle, Wisdom fell on the ground, and Natalie was able to flee the apartment.

After Natalie left, Wisdom told S.K. that they had to leave because the police were coming. As Wisdom and S.K. were walking to Wisdom's car, S.K. was able to escape to a nearby convenience store. A store clerk telephoned the police, while S.K. hid in a storage room. The police were initially unable to locate Wisdom. However, a few days later, federal agents arrested Wisdom in Florida, and he was extradited back to California.

B. The defense

Wisdom testified that he had been with S.K. at her residence on the night in question. Wisdom acknowledged that he had struck S.K. in the face multiple times, but denied that he had sexually assaulted her. Wisdom also acknowledged that Natalie had come to S.K.'s residence during the evening. Wisdom denied that he sexually assaulted Natalie, and claimed that Natalie had grabbed a knife and attempted to attack him before she left the residence.

III.

DISCUSSION

Wisdom claims that the trial court erred in failing to stay execution of the sentences on count 6 (making a criminal threat) (§ 422) and count 33 (false imprisonment by violence, menace, fraud, or deceit) (§§ 236, 237, subd. (a)) pursuant to section 654.

A. Factual and procedural background

1. Count 6

In count 6 of the information, the People charged Wisdom with making a criminal threat (§ 422) against S.K. S.K. testified at trial that during the physical and sexual assault, Wisdom told her that "he was going to chop [S.K.] up in little pieces. . . ."3 Wisdom was carrying a knife when he issued this threat, and S.K. believed that he "meant what he was saying." S.K. was very afraid, and thought that Wisdom might actually kill her. S.K. also testified that Wisdom threatened to kill her with a fire extinguisher at another point in the evening. During closing argument, the prosecutor elected to use Wisdom's "chopping" threat as the factual basis for the criminal threat charge. The trial court found Wisdom guilty of count 6. At sentencing, the trial court sentenced Wisdom to an upper term sentence of six years on count 6, to be served concurrently with the eight-year sentence that the court imposed on count 31 (§ 245, subd. (a)(1).

2. Count 33

In count 33, the People charged Wisdom with falsely imprisoning Natalie by violence, menace, fraud, or deceit (§§ 236, 237, subd. (a)), and alleged that Wisdom personally used a deadly or dangerous weapon in the commission of the offense (§ 12022, subd. (b)(1)).

At trial, Natalie testified that from the moment she entered S.K.'s residence, she believed that Wisdom was not going to allow her to leave. After Natalie entered the residence, Wisdom began to ask her if she was an undercover police officer or with the Secret Service. Natalie estimated that Wisdom accused her of being an undercover police officer at least 10 times during the approximately two hours that she was inside S.K.'s residence. During her testimony, the prosecutor asked Natalie whether she felt that she could leave S.K.'s residence at the moment Wisdom assaulted her with a knife. Natalie responded, "No way. No way." Natalie also testified that at another point during the encounter she asked Wisdom if she could go to her car, and he responded, "`You're not going anywhere.'"

The trial court found Wisdom guilty of the underlying offense (§§ 2236, 237, subd. (a)) and found true the weapon enhancement allegation (§ 12022, subd. (b)(1)). At sentencing, the trial court sentenced Wisdom to a concurrent upper term sentence of six years on count 33. In addition, the court imposed a concurrent sentence of one year on the section 12022, subdivision (b)(1) sentence enhancement.

B. Governing law and standard of review

Section 654 provides in relevant part: "(a) 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."

Section 654 prohibits multiple punishment where a single criminal act or omission violates more than one penal statute. This statutory prohibition has also been extended to cases in which an indivisible course of conduct with a single objective violates several different penal statutes. (See Neal v. State of California (1960) 55 Cal.2d 11, 19.) "If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)

The absence of an express finding from a trial court concerning the potential applicability of section 654 does not mandate reversal on appeal. (See People v. Coleman (1989) 48 Cal.3d 112, 162.) Rather, we review the trial court's implicit determination that section 654 does not apply, and we determine whether there is substantial evidence to support the trial court's finding. (See People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Andra (2007) 156 Cal.App.4th 638, 640 [in reviewing section 654 claim, "[t]he defendant's intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence"].)

C. Application

With respect to count 6, Wisdom contends that the "the record shows no basis for concluding appellant's threats involved any purpose other than to facilitate his plan to cause pain to [S.K.] by sadistically abusing her physically and mentally that night, for which he was already otherwise being punished." We disagree. The trial court could have reasonably found that Wisdom's threat to chop S.K. into pieces was issued with the objective to terrorize her, and not to facilitate his sexual assaults. (See People v. Solis (2001) 90 Cal.App.4th 1002, 1022.) In Solis, the defendant threatened to kill his former girlfriend and her roommate, and to burn their apartment. (Id. at p. 1009.) An hour later, the defendant set the victims' apartment on fire. (Ibid.) The defendant claimed that section 654 precluded sentencing him for both making criminal threats and committing arson because all of his conduct was done for the purpose of frightening and threatening his former girlfriend. The Solis court rejected this argument, reasoning in part:

"[I]n making the terrorist threats, the defendant intended to frighten whereas in committing arson an hour later the defendant intended to burn. Because defendant committed multiple and divisible acts with distinct objectives, section 654 was not violated by sentencing him on both the arson and terrorist threat convictions." (Solis, at p. 1022.)

Similarly in this case, the trial court could have reasonably found that Wisdom's objective in threatening to chop S.K. into pieces was to frighten her, while his objective in sexually and physically assaulting her was to achieve sexual gratification and/or to cause her physical pain. We also reject Wisdom's contention that "the court specifically found appellant's continuous assaultive and threatening behavior throughout the night was committed for the singular purpose of forcing [S.K.] into submission and sadistically causing her pain." The trial court never made such a finding, and certainly did not make such a finding in connection with considering whether section 654 applied to count 6. Accordingly, we conclude that there is substantial evidence to support the trial court's implicit finding that Wisdom committed count 6 in furtherance of his objective to frighten S.K., an objective that is distinct from the objective underlying the criminal conduct that forms the basis of the remainder of his convictions.4

With respect to count 33, Wisdom contends, "Clearly, appellant's physical restraint of Natalie and continuous use of force and the threat of harm from his ever-present knife was incidental to his plan to sexually accost Natalie." We disagree. Throughout his imprisonment of Natalie, Wisdom repeatedly accused Natalie of being an undercover police officer. Further, immediately after Natalie escaped from the residence, Wisdom told S.K. that they had to leave the residence because the police would be coming. There is thus substantial evidence in the record to support a finding that Wisdom imprisoned Natalie in an attempt to evade detection for the crimes that he had just committed against S.K. (See People v. Saffle (1992) 4 Cal.App.4th 434, 440 [§ 654 did not preclude execution of sentences on sexual offenses and false imprisonment where defendant imprisoned victim in order to prevent victim from reporting crimes].) Based on this evidence, the trial court could have reasonably found that Wisdom's imprisonment of Natalie served a separate criminal objective from his plan to sexually assault her, and that section 654 therefore did not require that the court stay execution of the sentence on count 33.

IV.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

FootNotes


1. Unless otherwise specified, all subsequent statutory references are to the Penal Code.
2. We restrict our discussion of the lengthy factual record in this case to the facts that are relevant to an understanding of Wisdom's claimed error on appeal.
3. The record is not clear with respect to exactly at what point during the evening Wisdom made this statement.
4. It is not entirely clear from Wisdom's brief which of his other convictions he contends precludes execution of a sentence on count 6. However, it does not appear that Wisdom is contending that his sentence on count 2 (torture) (§ 206) precludes execution of a sentence on count 6, since the court stayed execution of the sentence on count 2 pursuant to section 654. To the extent that Wisdom is raising such a contention, we conclude that the trial court could have reasonably found that that Wisdom's objective in threatening to chop S.K. into pieces was to frighten her, and that his objective in committing the offense of torture was to achieve sexual gratification and/or to cause her physical pain.

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