A jury fоund defendant Alan McCoy guilty of a number of offenses that arose out of his attack on the mother of his children in her apartment. The only two of these pertinent to this appeal are burglary and violation of a restraining order. The trial court sentenced him to state prison, awarding conduct credits limited to 15 percent of his actual presentence custody. (Pen. Code, § 2933.1.)
Defendant argues the trial court’s response to an inquiry from the jury was prejudicially incomplete. He also contends the court erred in imposing sentence for the violation of the prоtective order because the jury did not necessarily find that it occurred on an occasion separate from the burglary and other remaining offenses (of which he argues it was an indivisible part). We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Viewed through the lens of defendant’s arguments, the focus in our factual aсcount is narrow. Other than giving a thumbnail description of the victim’s background with defendant, we are concerned only with the chronology of the night in question.
Although never married, the relationship of defendant and the victim dated back to 1993, and produced four children (bom in 1995, 1996, 2001, and 2003). There had been many breakups over the years, too many for the victim to distinguish. Their life together was tempestuous, with alcohol-fed domestic violence on defendant’s part.
In 2000 and 2006, the victim sought police intercession. After an incident in 2007 where defendant also attacked their eldest daughter when she sought tо intercede on the victim’s behalf, the couple never lived together again. When the victim returned after this incident with her children to pick up their belongings, defendant arrived; he stmck the victim and damaged the residence and the victim’s car. This led to defendant’s prior conviction for
The victim began to drink heavily at this time. As a result of harassing the victim, defendant was jailed for violating the restraining order in 2008, obtaining early release on his one-year sentence.
Beginning in late 2009, the victim began communicating with defendant again in connection with his visitations with their youngest child, and by February 2010 they had resumed sexual relations with each other after defendant showed up on her doorstep with nowhere to stay. Defendant began to drink again, however, and the situаtion deteriorated quickly.
On the night of March 26, 2010, the victim left defendant at the apartment and met with deputies, who escorted her back to her apartment. Defendant abruptly opened the door as she attempted to unlock it, causing her to fall forward. Defendant was extremely аngry, but immediately calmed down on seeing the deputies. In response to the prompting of the deputies, defendant agreed to leave. However, he forgot his backpack. The victim went to a motel for two nights to avoid defendant in the event he came back.
Defendant phоned the victim repeatedly about retrieving his backpack; she was not receptive about seeing him in person. He showed up uninvited at her apartment on the evening of March 30. She testified that defendant entered her apartment through the window after she had called her boyfriend and then passed out on the bed. She had been drinking tequila and citrus soda since the morning, and admitted this could have affected her ability to remember the chronology of events. Defendant began to attack her physically almost immediately, saying he was angry that she had summoned the deрuties. At some point he broke her cell phone. He then had sexual relations with her against her will. Defendant spent the night with the victim and would not let her leave. On the following day, he went with her to an appointment, at which point she was able to call for assistance and have him arrestеd.
The victim did not recall making any calls to 911 on the night of the attack; while she did have a memory of calling 911 from the bathroom, she could not remember the day this happened. The agency’s records, however, showed this was in fact the evening of March 30, when it received three calls from the victim at 9:41, 9:45, and 9:53 p.m., during which she said to the dispatchers that she was in the bathroom.
At trial, she thought it was evident that defendant was in her аpartment before the 911 calls, and believed the 911 calls took place before she passed out on the bed and he entered through the window. She could not recall the arrival of the deputies. However, she was sure that she had not been beaten or raped beforе miking the 911 calls.
In a statement to deputies on March 31, the victim said defendant had come over to her apartment after talking to her on the phone. She also told them she had called for help while defendant was there but he left before deputies arrived; she then made the call to her boyfriend; and defendant later broke into her apartment through the window and attacked her.
DISCUSSION
I. The Trial Court’s Response to Jury’s Inquiry
II. Violation of the Protective Order and Section 654
To reiterate in brief, the victim recalled only an entry through the window, though the photographic evidence suggested a point of entry other than the window. The 911 calls (which the victim did not reсall) necessarily indicated defendant’s antecedent presence, during which he apparently had not yet assaulted her physically. Either defendant fled when the police arrived and then returned (at which time he committed the acts underlying his other convictions), or he was still somewhere inside when the victim spoke with police at the front door.
On this count, the prosecutor had argued only that any contact with the victim, regardless of her consent, was a violation. Defense counsel conceded defendant’s guilt. The probation report recommended thаt the trial court could properly punish defendant for violating the protective order (notwithstanding section 654). It interpreted the evidence as showing defendant
Section 654 precludes multiple punishment where an act or course of conduct violates more than one criminal statute but a defendant has only a single intent and objective. (People v. Liu (1996)
Defendant asserts the jury did not make a specific factual finding in connection with the count of violating a protective order that resolvеd the question of which of the two possibly separate arrivals were the basis for its verdict or, for that matter, the question of whether there were in fact two separate arrivals as opposed to a single arrival (after which defendant continuously remained in the apartment). Hе argues the trial court therefore could not make a finding independently that there were two arrivals and premise defendant’s punishment on an earlier arrival being independent of the other offenses. Although the People argue to the contrary, they do not cite any authority on this specific issue.
Defendant cites People v. Roberson (1988)
We do not believe this holding is a correct statement оf the scope of a trial court’s authority to make factual findings under section 654 in imposing sentence. People v. Siko (1988)
We have found three cases that involve the identification of the factual basis for a verdict for purposes of section 654 (none of which, again, have attracted any followers of their holdings). We briefly digest them.
The defendant in People v. Centers (1999)
People v. Bradley (2003)
The gist of these cases, contrary to the Roberson holding, is that in the absence of some circumstance “foreclosing” its sentencing discretion (as in Siko and Bradley), a trial court may base its decision under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts. We think this is the better reasoned cоnclusion. After all, a court may even rely on facts underlying verdicts of acquittal in making sentencing choices. (People v. Towne (2008) 44 Cal.4th 63, 83-89 [
The judgment is affirmed.
Nicholson, Acting P. J., and Hoch, J., concurred.
On September 24, 2012, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was deniеd November 28, 2012, S205661.
Notes
Undesignated statutory references are to the Penal Code.
Based on the conduct in the 2010 case, the court found him in violation of probation in People v. McCoy (Super. Ct. Sac. County, 2007, No. 07F05629) (the 2007 case), revoked his probation, and imposed a concurrent prison term. Neither of the notices of appeal includes that case number, nor does defendant raise any argument in connection with it, so we will not make any further reference to the 2007 case.
During the first call, she made reference to defendant having returned after “they” had come over “last”; she terminated the call when defendant began to pound on the bathrоom door. The second was only a brief call in which she said defendant was going to break down
See footnote, ante, page 1333.
The opinion does not contain any indication of any express factual findings on the part of the trial court in imposing sentence.
A fourth case, People v. Coelho (2001)