PEOPLE v. ZATO

No. A147284.

THE PEOPLE, Plaintiff and Respondent, v. MEGHAN ANNE ZATO, Defendant and Appellant.

Court of Appeals of California, First District, Division Three.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

POLLAK, Acting P.J.

Defendant Meghan Anne Zato appeals a judgment convicting her of assault with a deadly weapon, hit-and-run and driving under the influence, and sentencing her to seven years in prison. She contends (1) the court erred in refusing to instruct the jury on the defense of duress with respect to the assault and hit-and-run charges, (2) her trial counsel provided ineffective assistance by failing to object to the prosecutor's improper attacks on her character, and (3) the prosecutor committed prejudicial misconduct by disparaging defense counsel and by misstating the relevant legal principles. Defendant also contends that the sentence imposed on the driving under the influence counts must be stayed pursuant to Penal Code1 section 654. We agree the judgment must be modified to stay the sentence imposed on the driving under the influence counts, but affirm the judgment in all other respects.

Factual and Procedural Background

On July 15, 2014, defendant was charged with assault with a deadly weapon (§ 245, subd. (a)(1)) (count 1), driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) (count 2), driving with a blood alcohol content of 0.08 percent or above causing injury (Veh. Code, § 23153, subd. (b)) (count 3), and leaving the scene of a collision causing injury (Veh. Code, § 20001, subd. (a)) (count 4). The information further alleged with respect to the first three counts that defendant personally inflicted great bodily injury upon the victim causing him to become comatose and to suffer paralysis (§ 12022.7, subd. (b)).

The following evidence was admitted at trial:

Shortly before midnight on Friday, October 4, 2013, defendant and two friends, Jake and David, went to the Ruby Room bar in Oakland, on 14th Street between Madison and Oak streets. The doorman at the bar testified that he escorted defendant out of the bar after being informed that she was "causing problems at the pool table." Outside the bar, defendant repeatedly insulted the doorman and called him many crude names. The doorman physically moved defendant away from the bar entrance to the front of a nearby liquor store. The doorman went back to the bar as Jake and defendant walked in the opposite direction. Jake and defendant walked on 14th Street toward Madison Street, crossed 14th Street, and walked back on the opposite side of 14th Street until they were across from the bar in front of the Oakland Public Library.

The front steps of the library are almost directly across from the entrance to the bar and visible from the doorman's location. A large group of people had congregated on the library steps. Some were "tagging" the building. According to the doorman, defendant stopped in front of the crowd and in a "loud and shrill" voice told them they "shouldn't be tagging" and that she was going to call the police. Other witnesses also testified that defendant confronted the taggers in an "aggressive" tone.

When confronted by defendant, some 10 to 20 members of the group from the library chased defendant down the block towards the bus shelter located on 14th Street near the intersection of 14th Street and Oak Street. Someone in the group punched defendant in the face and stole her cell phone. When the group returned to the library steps, defendant had a bloody nose and was crying. The doorman walked towards defendant, pointed at her from across the street and said, "that's what you get." Others were also laughing at defendant.

Defendant's car was parked on 14th street between the library steps and the bus shelter approximately 60 feet from the intersection of 14th Street and Oak Street. Shortly after the attack, the doorman saw defendant sitting in the driver's seat of her car with the motor running. He watched as defendant's friend David went back to the library steps and spoke to the group. When the men started to surround David in a "threatening way," he "retreated" to defendant's car. Three to five people followed him and one of the men used a marker to draw on the trunk of defendant's car. Then the rear tires of the car started to spin and the car accelerated forward quickly. Witnesses testified that they did not see anyone chasing the car after it "peeled out."

Dexter Williams was smoking a cigarette outside the bar when the doorman and defendant got into an argument. He testified that he crossed the street towards the library when he heard defendant "getting into it with a kid about writing on the wall." He was concerned that things would "get out of hand" and wanted to get her to leave. She called him names and told him she "didn't have to do shit" when he suggested she should leave. He saw defendant get hit twice in her face and saw someone else take her cell phone. He claimed that the person who took the phone handed it to defendant's friend David. After the group returned to the library steps and defendant was in her car, Williams crossed the street back towards the bar.

Defendant drove forward on 14th Street towards Oak Street. As she approached the intersection the traffic light was red. When the signal changed she could have driven straight through the intersection or made a left turn, but she could not make a right turn onto Oak Street because it was a one-way street in the opposite direction. Had she driven straight through the intersection on 14th Street, her residence would have been "about a mile and a half" away. Instead of stopping at the light, defendant drove into the intersection, made a fast U-turn, and accelerated back up 14th Street. Both the doorman and Williams testified that the intersection was clear of pedestrians when defendant made the U-turn.

After making the U-turn, defendant drove "full speed" in the right lane closest to the bar. As her car "came roaring up the block," the victim was crossing the street from the bar towards the library. Some of the "taggers" were standing in the street in front of the library. As defendant's car approached the bar, it suddenly veered left in the direction of the taggers and the victim on the opposite side of the street. The car crossed the double yellow lines into the oncoming traffic lanes. According to witnesses, defendant appeared to aim her car directly at the victim. The taggers quickly moved out of the way, but the victim — who was still in the lane closest to the sidewalk — shuffled back and forth trying to avoid the car. As the car approached him, the victim put his hands out and crouched down, as if bracing for impact.

Defendant's car hit the victim without slowing down. The victim tumbled over the hood of the car and smashed his head against the windshield. His body stayed on top of the car "for a while," then fell off to the side when the car veered right. The car continued to the next intersection where defendant made a left turn.

Williams, believing defendant had killed the victim, ran to his truck, jumped inside, and followed defendant. Williams chased defendant's car twice around Lake Merritt. During the chase, they drove through five or six red lights and went the wrong direction down four different streets. Williams honked his horn to get the attention of police in the area. Sometime before their second lap around the lake, defendant slowed down and David jumped out of the moving car. Once out of the car, David called 911 to report the collision with the victim. He asked the operator to tell him if he was "gonna be accessory to this," stating that he "had nothing to do with this." A recording of his 911 call was admitted into evidence.

Williams was eventually able to stop defendant on the bridge portion of Lake Merritt Boulevard. Oakland Police Officer Cedric Remo and his partner encountered the cars on the bridge. As their patrol car approached, defendant's car began to back up. Officer Remo immediately got out of the patrol car and instructed defendant to turn off her car's engine and step out of the car. When Williams approached, defendant called Williams "a fucking piece of shit." The officer did not observe defendant to be "visually scared" of Williams and described her demeanor with Williams as confrontational. A recording of the interaction made by the arresting officers immediately following the stop was played for the jury.

Defendant sat in the patrol car for nearly two hours while the officers took statements from witnesses who had walked from the collision scene to the bridge. Before taking defendant to the police station, officers took her to the hospital where a registered nurse drew a sample of her blood at 3:53 a.m. Based on that sample, defendant's blood alcohol content was determined to be 0.16 percent. An expert toxicologist estimated that defendant's blood alcohol content at the time of the accident was approximately .24 percent.

The victim spent "at least six months" in the hospital following the collision. The collision also rendered him legally blind and the injury to his pituitary gland requires him to inject himself with hormones on a daily basis. He also takes daily medication to prevent seizures, which he occasionally suffers as a result of his brain injury.

Defendant testified that she had been drinking all evening and by the time she got to the Ruby Room she felt "very, very intoxicated." She admitted causing a disturbance in the pool room and agreed that the doorman had the right to remove her from the bar. She also admitted getting into an argument with the doorman outside the bar in which they exchanged "vulgar words." She claimed that as she and her friends were walking to the car, it was Jake, not her, that told the men they should not be tagging the building. The men responded by pushing Jake and threatening to kill him. Only when Jake ran and the men started chasing him, did defendant yell for them to stop and threaten to call the police. The angry crowd responded by surrounding her, punching her and threatening to kill her. A man knocked her to the ground and took her cell phone.

David picked her up and brought her to her car. While she was standing there smoking a cigarette, the doorman stepped off the curb and said, "ha, ha, serves you right, you fucking bitch," and high-fived his friends. David told her, "We got to go. Let's get out of here. We got to leave." Defendant "didn't feel right to drive" but did not want to flee the area on foot because she "could barely even walk."

Defendant asked David to call the police, but he responded, "No, let's just go. Let's just go." She said, "if you are not going to call the police, give me my phone so I can." David then walked over to the group of people on the library steps and attempted to retrieve her phone. As defendant waited inside the car, she heard "nasty," "angry" sounds, then David came running back to the car, saying "We got to go. We got to go. Let's get the fuck out of here."

A man with dreadlocks approached the passenger side window. He told defendant and David that the man who had punched her was "a psycho" and if they did not leave they were "going to get hurt." He told them not to call the police. Defendant was scared and understood his words as a warning. Defendant whispered to David, "You got the phone. Use the phone. Make the call." David responded, loud enough for the crowd to hear, "fuck no. I'm not calling the police. Let's just get the fuck out of here." At this, the "whole group" from the library steps crowded around her car. David said, "My God, they are going to kill us. We got to go." Defendant looked in the rearview mirror and saw a couple of men behind her car. Suddenly, she heard a noise that sounded like a gunshot. She started the car's engine and pulled out of the parking spot.

Defendant explained that she made a U-turn at the intersection because there were "guys in the street with hands up." She was distracted and "kind of looking around" as she drove. She hit something and "tried to stop," but David screamed, "You hit somebody. Let's go. They are going to kill us. You just hit somebody." Defendant looked behind her, saw a group of people following her, and thought, "they are definitely going to kill me now." She drove forward and made a left turn onto Madison Street.

When she finally stopped her car and the police arrived she was "happy to see" them because she had "wanted to call them all along." On cross-examination, however, the prosecutor questioned her about insulting comments she made while in the backseat of the police car, which included calling the officers "fucking assholes" and the arresting officer a "limp dick piece of shit" and an "insecure fucking coward" with "a retard IQ."

The jury convicted defendant on all charges and found the enhancement allegations true. The court sentenced defendant to a prison term of seven years. Defendant timely filed her notice of appeal.

Discussion

1. Duress

The jury was instructed, at defendant's request, as follows: "The defendant is not guilty of count 2, driving under the influence of alcohol causing injury, or count 3, driving with excessive blood alcohol causing injury, if she acted under duress. The defendant acted under duress if, because of threat or menace, she believed that her or someone else's life would be in immediate danger if she refused a demand or request to commit the crimes. The demand or request may have been express or implied. [¶] The defendant's belief that her or someone else's life was in immediate danger must have been reasonable. When deciding whether the defendant's belief was reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in the same position as the defendant would have believed. [¶] A threat of future harm is not sufficient; the danger to life must have been immediate. [¶] The People must prove beyond a reasonable doubt that the defendant did not act under duress. If the People have not met this burden, you must find the defendant not guilty count 2, driving under the influence of alcohol causing injury and count 3, driving with excessive blood alcohol causing injury."

Initially, the court had refused to instruct on duress with respect to any of the charges, explaining that there was no substantial evidence of a demand or request, express or implied, to commit the crimes alleged. Upon reflection, however, the court ruled that there was sufficient evidence of a demand or threat to support the instruction that defendant was "under duress with regard to the driving component of the second and third counts." The court accepted defendant's argument that a reasonable jury could conclude that she was threatened with bodily harm by the dreadlocked man if she did not drive away. The court distinguished counts 1 and 4, however, on the ground that it "did not find driving necessarily an element of those offenses and found them well within, more properly within, the necessity rubric."2

Defendant contends the court erred in failing to give the duress instruction with respect to the assault and hit-and-run charges under counts 1 and 4.3 She argues, "A duress instruction was . . . compulsory for the assault, because the driving alleged for the DUI charges was exactly the same driving alleged to constitute the assault. A duress instruction also should have been given for the hit-and-run, because substantial evidence showed [defendant] would have stopped but for her friend screaming at her to go, and the hostile crowd running at her." We disagree.

Contrary to defendant's argument, there is a significant difference between defendant having driven away from the crowd immediately following the alleged demand that she leave the area, and her driving back towards the crowd after making a U-turn at the intersection; it is the latter that amounted to an assault. The difference, as the trial court explained, was reflected in the jury instructions.

The jury was instructed under count 2 that to find defendant guilty of causing injury to another person while driving a vehicle under the influence of an alcoholic beverage it must find: "1. The defendant drove a vehicle; [¶] 2. When she drove a vehicle, the defendant was under the influence of an alcoholic beverage. [¶] 3. While driving a vehicle under the influence, the defendant also committed an illegal act; [¶] AND [¶] 4. The defendant's illegal act caused bodily injury to another person." The jury was instructed that the alleged illegal act was an assault and that to find defendant guilty of assault it must find: "1. The defendant did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, she was aware of facts that would lead a reasonable person to realize that her act by its nature would directly and probably result in the application of force to someone; [¶] AND [¶] 4. When the defendant acted, she had the present ability to apply force with a deadly weapon other than a firearm to a person."4 The court concluded that based on defendant's testimony, the jury could find that defendant committed the first and second elements of the driving under the influence counts under duress. As the Attorney General argues, however, "no one demanded that [she] make a U-turn and accelerate her car up 14th Street while the street was crowded with people." Any duress from the dreadlocked man's threat did not possibly extend to cause her subsequent assaultive driving.

Likewise, there is no substantial evidence that anyone threatened defendant with bodily harm if she did not flee the scene of the accident. The defense of duress, unlike the necessity justification, requires that "the threat or menace be accompanied by a direct or implied demand that the defendant commit the criminal act charged." (People v. Steele (1988) 206 Cal.App.3d 703, 706 [duress defense not available when inmate escaped in response to threats of bodily injury because persons making threats did not demand that defendant escape]; People v. Saavedra (2007) 156 Cal.App.4th 561, 567 [necessity, not duress, is appropriate defense to charge of illegal possession of a weapon where inmate claimed he picked up a weapon in a fight to prevent a more aggravated attack against him and there were no facts showing an express or implied demand by his attackers that he seize the weapon.].) While the approaching crowd may have appeared threatening to defendant, there is no evidence that they demanded she leave the scene of the accident. To the contrary, one of them chased her until the police arrived and arrested her. Similarly, while defendant testified that David pleaded with her to leave the scene of the accident, there is no evidence that he threatened to harm her if she did not.

Accordingly, the court properly refused the requested duress instruction with regard to the first and fourth counts. In all events, any error in this respect unquestionably was harmless because the jury rejected the defense as to the second and third counts as to which the instruction was given. Having found no duress as to counts 2 and 3, the jury could hardly have found duress as to counts 1 and 4.

2. Character Evidence

Defendant contends the prosecutor improperly engaged in an "all-out character assassination" of her "at every step of the proceedings" and that her trial attorney's failure to object to "prejudicial, inadmissible character evidence" constituted ineffective assistance of counsel. Defendant cites to four pages in the record and argues that "[d]uring direct of the state's witnesses, the prosecutor elicited many of Zato's insults to various people, and defense counsel did not object to any of them." In her reply brief, she argues that all "evidence of [her] completely irrelevant drunken rants and insults" should have been excluded under Evidence Code section 1101.

Trial counsel's "failure to object" to evidence of defendant's belligerent conduct was not deficient because the evidence was admissible under Evidence Code section 1101, subdivision (b) to prove relevant facts other than criminal disposition. (See People v. Finney (1980) 110 Cal.App.3d 705, 715 [In trial on charges of assault with a deadly weapon, evidence of aggressive and combative driving during police chase was admissible to rebut defendant's defense of mere reckless conduct.].) As the prosecutor argued in the trial court, evidence of defendant's "overall combative and aggressive behavior leading up to and directly following her assault on the victim is circumstantial evidence that the defendant's actions were in fact intentional."

Contrary to defendant's argument, the prosecutor did not "assure" the court that evidence of defendant's belligerent conduct would be used only to establish her level of intoxication. Any assurances as to the use of this evidence was limited to defendant's conduct involving the arresting officers. Defendant's trial counsel essentially conceded that evidence of defendant's conduct before the accident and her interactions with Williams immediately after being stopped might be relevant, as discussed above, to prove intent. Defense counsel strongly objected, however to introduction of evidence that defendant was belligerent with officers at the time of the arrest. Her attorney argued, "[T]o say that an individual who is very vocally criticizing the police in crass and vulgar manners, that that's somehow relevant to whether she purposely . . . struck a person two hours ago . . . I think there's no relevant nexus between those two things." He continued, "I don't see how that's not classic propensity evidence to say that she has a character of being belligerent or rude to people, and that's somehow relevant to her striking someone." The trial court acknowledged that there was a potential for the jury to view the evidence of her interactions with the officers as propensity evidence, but ultimately admitted a portion of the police officer's recording containing some of defendant's curses for the purpose of giving "context to the jury of her level of intoxication when she drove." On appeal, defendant makes no argument challenging the court's ruling on the admissibility of the police officer's recording.

Accordingly, defendant has not established any error in the admissibility of any specific testimony, and there is no basis on which to conclude her trial counsel's failure to object was either deficient or prejudicial. We consider post, in connection with defendant's claim of prosecutorial misconduct, defendant's argument that the prosecution improperly used the evidence of defendant's aggressive and belligerent conduct to encourage the jury to convict defendant because she was a bad person.

3. Prosecutorial Misconduct

"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.) "`A defendant's conviction will not be reversed for prosecutorial misconduct' that violates state law, however, `unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.'" (People v. Wallace (2008) 44 Cal.4th 1032, 1071.) Defendant contends the prosecutor committed misconduct by improperly attacking her character, misstating the law of assault to eliminate any intent or subjective awareness requirement, and disparaging defense counsel.

In her opening brief, defendant claims the prosecutor repeatedly characterized her as "aggressive," "combative," and "horrible." Defendant's brief details the numerous ways in which the prosecutor incorporated defendant's "belligerence, hostility, and profanity" in his opening statement, cross-examination and closing argument. The following examples are representative of the comments and questions defendant finds improper. In his opening statement, the prosecutor stated, "She was hostile; she was aggressive; she was mean. The only threat — true threat to the public that evening was her. Trouble didn't find Ms. Zato. Ms. Zato . . . was the trouble. She was trouble for the majority of people that came into contact with her that night. When she went into the Ruby Room, she was the trouble at the pool table. She was the trouble that got kicked out. She was the trouble that verbally assaulted a bouncer and she was the trouble that caused the disturbance in front of the library stairs." He stated, "A freeze frame of her initial conduct shows her with her middle finger extended to that group of people as she left. She wasn't provoked. She wasn't antagonized. This was the Meghan Zato that presented to the community that night." During cross-examination, the prosecutor asked defendant questions like "Would you agree with me that your demeanor was horrible the whole night?" and "You were a nasty person that night, correct?" The prosecutor began his closing argument saying, "Over the past two weeks, ladies and gentlemen, you have received a full understanding of exactly the Meghan Zato that presented herself to the world on October 5th, 2013. You've learned about her belligerence, her state of intoxication, her hostility, and her aggression." The prosecutor argued further: "Ms. Zato didn't care about who was in her way. She was justified in what she was doing. You don't mess with her that night." "She wasn't accidentally involved in hitting a person; she intentionally flipped a U-turn and drove up the street. And she didn't care. The same way she didn't care in the bar, and the same way she didn't care the rest of that night."

"And it's that hostile, not caring, fuck-you attitude of Ms. Zato that was able to do what she did with her car. And that's why this is an assault. The act and the disregard for the consequences. That's the assault."

Defendant contends the prosecutor's comments and questions were "designed solely to make her look like a bad person or elicit bad character evidence." However, none of the prosecutor's comments or questions improperly urged the jury to convict defendant because she was a bad person. Each comment and question seems carefully crafted to emphasize defendant's belligerent behavior "that night" and to show how her conduct "that night" reflected an intent to assault the victim. Indeed, the prosecutor explained in closing argument that "[i]n a criminal case, you don't convict people because you hate them or think they're disgusting or disrespectful [or] rude or horrible." He argued, "Don't convict her because of those statements, but don't forget about these statements when you're trying to assess what was going through her mind when she made that U-turn." There was no prejudicial misconduct in this regard.

Defendant also argues that the prosecutor "misstated the law in two ways: he repeatedly asserted that assault required `no intent' and he often repeated that Zato was to be convicted if she made a willful U-turn, omitting the requirement of subjective awareness." Defendant cites several places in the prosecutor's arguments where the prosecutor stated that intent is not required to establish an assault. However, these record citations, though quoted correctly, are taken out of context. In context, it is clear that the prosecutor acknowledged that general intent must be proved and that in his statements, "no intent" was referring only to the absence of a specific intent requirement.

For example, towards the start of his closing argument, the prosecutor argued: "Some of you may have been curious as to what an assault actually is. One of the things most surprising to jurors is that to be guilty of an assault you do not have to intend to hurt anybody. Assault with a deadly weapon is a general-intent crime. This allegation focuses on the act that you do and your awareness of your surroundings. The People are not required to prove that the defendant actually intended to use force against someone when she acted." The prosecutor also argued, "Willfully accelerating a turbo diesel Mercedes when you're wasted up a street that you know is crowded at night is something that's likely to cause someone harm. This is especially so when you are aware in your own words that between 40 and 50 people are congregating in that area in the middle of the block by the library. This is an assault. These are the facts known to Ms. Zato when she did what she did." Later, the prosecutor argued, "[S]omeone's not guilty of assault with a deadly weapon if they acted without the intent required for that crime. So what's intent, again, for an assault with a deadly weapon? We know that intent is just to do an act with your car knowing the circumstances that are around you. Intent isn't to kill someone or hurt someone. It's a general-intent crime."

There is no dispute that the jury was properly instructed that an assault requires a willful act be committed with an awareness of facts that would lead a reasonable person to realize that her act by its nature would directly and probably result in the application of force to someone. The prosecutor correctly argued both the intent and knowledge elements of assault and, in all events, given the trial court's correct instructions, there is no basis to conclude there was any misconduct or that the jury was misled as to the proper legal standard.

Finally, defendant contends the prosecutor committed misconduct by repeatedly disparaging defense counsel during closing argument. She cites numerous alleged instances of disparagement, including comments that defense counsel was "going to be making every argument she can to get her client off and get her acquitted of these charges"; describing defendant as "very well coached"; stating that "if you're going to sit here and listen to an attorney argue to get her client off and absolve her client of responsibility for these actions, you better demand that she is following the evidence that you've heard in this case and that the arguments that she's making square with your common sense" and that there is "a reason why the defense couldn't focus on the evidence. And that's because the evidence points to her client's guilt. So what did you just hear? What did you just get bombarded with? You got bombarded with attacks on the DA. You got bombarded with attacks on the witnesses."

Nothing in the prosecutor's comments may be understood to be an improper attack on the integrity of counsel or to cast aspersions on counsel. (See People v. Medina (1995) 11 Cal.4th 694, 759 [Prosecutor's comment that "`any experienced defense attorney can twist a little, poke a little, try to draw some speculation, try to get you to buy something'" is not misconduct.].) The prosecutor's comments concerning defense counsel's asserted failure to address the evidence directly constitutes fair comment on defense counsel's arguments at trial. (People v. Bemore (2000) 22 Cal.4th 809, 846 [A prosecutor "has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account."].)

Accordingly, we reject each of defendant's claims of prejudicial prosecutorial misconduct.

4. Sentencing

The trial court sentenced defendant to a seven-year prison term for the assault conviction in count 1 and the related enhancement, a concurrent term of six years, four months for the driving under the influence conviction in count 2 and the related enhancement, another term of six years, four months for the driving under the influence conviction in count 3, which the court stayed pursuant to section 654, and, finally, a concurrent term of two years for the hit-and-run conviction in count 4. Defendant contends the sentence imposed on count 2 must also be stayed pursuant to section 654. The Attorney General agrees.

"Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) It is the defendant's intent and objective that determines whether the course of conduct is indivisible. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Thus, "`[i]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.'" (People v. Palmore (2000) 79 Cal.App.4th 1290, 1297.) But, "if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Perez (1979) 23 Cal.3d 545, 551.)

A defendant's intent and objective are factual matters for the trial court to determine. (People v. Palmore, supra, 79 Cal.App.4th at p. 1297.) This court "must affirm if substantial evidence supports a trial court's express or implied determination that punishment for crimes occurring during a course of conduct does not involve dual use of facts prohibited by section 654." (Ibid.)

Here, the trial court expressly found that defendant had a "separate criminal objective" with regard to the assault count and the driving under the influence counts. The Attorney General concedes, however, that the court's finding is not supportable because no unlawful act other than the assault was alleged or argued to be the illegal act required under the driving under the influence counts. Accordingly, the concurrent sentence imposed on count 2 must be stayed.

Disposition

The judgment shall be amended to stay the concurrent sentence imposed on count 2 and is affirmed in all other respects.

Siggins, J. and Jenkins, J., concurs.

FootNotes


1. All statutory references are to the Penal Code unless otherwise noted.
2. The jury was instructed on the defense of necessity in relevant part as follows: "The defendant is not guilty of the crimes charged in counts 1, 2, 3 and 4 if she acted because of legal necessity with respect to those crimes. [¶] In order to establish this defense, the defendant must prove that: [¶] 1. She acted in an emergency to prevent a significant bodily harm or evil to herself or someone else; [¶] 2. She had no adequate legal alternative; [¶] 3. The defendant's acts did not create a greater danger than the one avoided; [¶] 4. When the defendant acted, she actually believed that the act was necessary to prevent the threatened harm or evil; [¶] 5. A reasonable person would also have believed that the act was necessary under the circumstances; [¶] AND [¶] 6. The defendant did not substantially contribute to the emergency."
3. There is no merit to the Attorney General's invited error argument. A fair reading of the record establishes that defendant requested the instruction be given as to all counts and the court ruled on the request as to each count.
4. The instructions as to count 3 were essentially identical except that the jury was required to find under the second element that defendant's blood alcohol level was 0.08 percent or more by weight.

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