Filed 12/16/19 P. v. Bennett CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JACOB ALAN BENNETT,

Defendant and Appellant.

F074916

(Super. Ct. Nos. CRF45278 & CRF50674)

OPINION

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge.

Melissa Baloian Sahatjian, under appointment by the Court of Appeal, for *Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

This appeal follows sentencing in two separate criminal cases against defendant Jacob Alan Bennett. Both cases involved charges of domestic violence against defendant’s former girlfriend, Jane Doe (Jane). The first case arose from physical altercations between defendant and Jane on four different days between August 10, 2014, and October 5, 2014 (Tuolumne Super. Ct. case No. CRF45278). Defendant pled guilty to three charges, including a felony count of corporal injury to a cohabitant under Penal Code section 273.5, subdivision (a) (count I); misdemeanor interference with a wireless communications device (§ 591.5) (count IV); and misdemeanor violation of a criminal protective order (§ 166, subd. (a)(4)) (count VI). The three remaining misdemeanor charges were dismissed. Defendant was sentenced on January 5, 2015, to five years of probation and nine months’ jail time, with credit for time served of 107 days. Another protective order was issued as to Jane that prohibited defendant from harassing, striking, threatening, assaulting, following, stalking, molesting, destroying or damaging her personal or real property, disturbing her peace, keeping her under surveillance, or blocking her movements.

The second case (case No. CRF50674) arose from another domestic dispute with Jane on June 21, 2016, and defendant was charged with three felony counts: willful infliction of injury to a former cohabitant (§ 273.5, subd. (a)) (count I); criminal contempt for violating a protective order (§ 166, subd. (c)(4)) (count II; and first degree residential burglary (§ 459) (count III). Also as a result of the June 21 altercation, the probation department filed an affidavit that defendant had violated a term of his probation related to case No. CRF45278. An order to show cause was issued, but defendant failed to appear; a no bail bench warrant was issued for defendant’s arrest, and the 2015 probation was revoked. That violation of probation related to case No. CRF45278 continued to trail case No. CRF50674 until after trial.

At trial on case No. CRF50674, the jury found defendant guilty on counts I and II, but not guilty on count III. With regard to count II, the jury also found true defendant had been convicted of a prior violation of section 166 and found true that his current conduct violating section 166 involved an act of violence or a credible threat of violence. After the verdict was announced, defendant admitted to a violation of probation in case No. CRF45278 that had been trailing case No. CRF50674. The violation of probation in case No. CRF45278 and case No. CRF50674 were subsequently sentenced together.

The trial court sentenced defendant to a total determinate term of four years eight months in prison. Relating to case No. CRF50674, the trial court imposed a determinate term of three years on count I (§ 273.5, subd. (a)), and a consecutive term of eight months on count II (one-third of the middle term) (§§ 166, subd. (c)(4), 1170.1, subd. (a)). As to case No. CRF45278, the court sentenced defendant to one year (one-third of the middle term) for violation of section 273.5, subdivision (a) (count I), to be served consecutive to the term imposed in case No. CRF50674 (§§ 273.5, subd. (a), 1170.1, subd. (a)); a concurrent term of six months for misdemeanor violation of section 591.5 (count IV) (§§ 591.5, 19); and a concurrent term of six months for misdemeanor violation of section 166, subdivision (a)(4) (count VI) (§§ 166, subd. (a)(4), 19.)

On appeal, defendant makes two claims of error pertaining only to case No. CRF50674: he asserts the trial court erred in failing to instruct on the lesser included offenses of count I, which includes battery under sections 242 and 243 and simple assault under section 240. Defendant also argues the sentence on count II should have been stayed pursuant to section 654.

The People respond there was no evidence defendant committed any lesser included offense of count 1 that would have mandated instructing on any lesser offenses. Further, defendant maintained separate objectives with regard to counts I and II such that the sentence for count II was correctly not stayed under section 654.

We agree with defendant that the trial court was required under section 654 to impose the full middle term on count II (criminal contempt for violating a protective order) and stay the sentence, and we modify the judgment accordingly. As to count I, we find the court properly declined to instruct the jury on any lesser included offenses. Except as modified, the judgment in case No. CRF50674 is affirmed.

FACTUAL SUMMARY

Defendant met Jane at a bar in approximately 2010, after which they began dating and subsequently lived together. In 2014, defendant was charged with a felony and several misdemeanor counts stemming from four different incidents of domestic violence against Jane. Defendant pled guilty to three of the offenses, including one for contempt of court for violating a protective order related to Jane. He was sentenced to five years of probation and nine months of jail time. At his sentencing in January 2015, the court issued another protective order related to Jane pursuant to section 1203.097; the trial court instructed that, as a condition of his probation, defendant “must not harass, strike, threaten, assault, follow, stalk, molest, destroy or damage [Jane’s] personal or real property, disturb her peace, keep her under surveillance or block her movements.”

After defendant was released from jail, he moved back in with Jane for a time, and then moved out prior to June 21, 2016. Another incident of domestic violence occurred between defendant and Jane on June 21 for which defendant was charged with three felony counts: injury to a former cohabitant, criminal contempt for violation of a protective order, and burglary. A jury trial was held in September 2017. The trial evidence relevant to this appeal is summarized below.

I. Jane’s 911 Call on June 21

On June 21, Jane made a 911 call, portions of which were played at trial. Jane told the dispatcher that while defendant was no longer at her home, she had been at a bar and when she came home, he was in her trailer. She told the dispatcher her door had been locked, defendant had broken in, and he had beaten her up. She reported she had marks on her neck and she feared he could come back anytime he wanted. The dispatcher indicated a deputy would be sent over.

II. Deputy Worthington’s Testimony

Deputy Eric Worthington was working for the county sheriff’s department as a patrol deputy on June 21 when he was dispatched to Jane’s home. When Worthington arrived there, he noted Jane was crying and her voice was trembling. Worthington directed Jane sit down to regain her calm; she smelled like alcohol. She told Worthington she had come home around noon, and when she opened her door defendant was seated on her couch directly in front of the door. Before she could ask him why he was there, defendant grabbed her by the throat with one hand. She told defendant she was unable to breathe, and the next thing she remembered was being on the floor and pleading with him to stop. Defendant let her off the floor, walked around for a few minutes inside the trailer, and then walked out. Jane got up, locked the door, and called 911. During this time, Jane looked outside and saw defendant getting into a grey taxi. Worthington noted Jane had bruising on her neck consistent with strangulation by one hand. The deputy took photographs and had Jane complete a form indicating where her injuries were located. On the form, Jane circled the area of her neck. Worthington did not notice any damage from the reported break in; the door and windows were intact, and nothing was knocked over. On cross-examination, Worthington acknowledged the marks he saw on Jane’s neck could have been self-inflicted or were possibly hickeys.

On June 28, Worthington was called back to Jane’s residence because she wanted to confess she had lied in her initial report to Worthington about being strangled by defendant. When Worthington arrived at Jane’s home, she was slurring her words and smelled like alcohol. She admitted she had been drinking; she was very incoherent and difficult to understand. Worthington asked her to clarify whether she had lied about defendant strangling her, but she confirmed he had strangled her. She told Worthington she felt guilty because she did not want defendant to go to prison, but she did not want the same thing to happen to someone else. She also told him that none of defendant’s things were in the trailer as all of it had been placed outside under a tarp. She also indicated defendant’s mother had been calling her, telling Jane that if Jane did not change her story, defendant was going to prison.

III. Jane’s Trial Testimony

Jane testified she remembered very little about what happened between her and defendant on June 21 because she had been drinking and was on medication at that time. Defendant had moved out of the trailer and she had not seen him for “[m]onths” prior to June 21. She did not remember where she had been on June 21 before coming home, although she noted it was probably a bar she frequents. She did not remember whether defendant was in the trailer when she arrived home or whether he was outside with the dog. She remembered having a conversation with defendant in the trailer during which she had “scream[ed] and yell[ed] a lot,” and she was angry and “full of emotions” when he left. She testified defendant did not appear to have been drinking that day.

She did not remember calling 911 after defendant left her trailer or speaking with Worthington that afternoon. She testified the marks on her neck noted by Worthington were hickeys. She acknowledged defendant had left personal items in the closet of her trailer and outside the trailer under a tarp; while he once had a key to the trailer when he was living there, she was uncertain whether he had given it back to her when he moved out. Jane did not think defendant had broken into her trailer that day as there was no damage and she never locks her door. She testified she did not intentionally lie to the 911 dispatcher when she reported defendant had broken into her home on June 21, but she had been on medication and she was intoxicated when she made that call.

IV. Defendant’s Trial Testimony

Defendant testified Jane is his ex-girlfriend, he has known her for six years, and they have lived together in the past. He last moved out of the trailer they shared about three weeks before June 21. He maintained some belongings at Jane’s home; he received a call from a volunteer with Meals on Wheels who was concerned about Jane’s dog because the dog was outside in the heat. Defendant called Jane, but she could not get back to the trailer because she was at a bar. Defendant went to the trailer to take care of the dog and then put the dog inside the trailer; he did not take anything from the trailer that was not his. Jane returned about 1:00 p.m., while defendant was outside the trailer.

When she arrived home, Jane was intoxicated, slurring her words, and she had difficulty getting from the taxi to the trailer. Defendant went inside the trailer with her, and he stayed for not more than 10 minutes. Defendant picked up his bag, telling her he had to go to a meeting and could not stay. He stepped out and took the cab she had arrived in to a meeting. When he left, Jane was slurring her words and she was irritated, but she was not aggressive toward him and she never touched him. He was not in the trailer with her for more than 10 minutes, he never used his hands to strangle her—he never touched her at all. He testified that when Jane is intoxicated, she cannot remember things later and she cannot control herself or her anger. He went back to the trailer on June 22 to pick up his remaining belongings.

On cross-examination, defendant stated he did not remember seeing any marks on Jane’s neck on June 21, and he reiterated he was not sitting on the couch when she arrived home—he was outside the trailer. He admitted he had pushed Jane in the past and broke her elbow, even though he denied it to the police at the time. He did not remember biting her hand or slapping her during prior incidents. After he was released from jail for his 2015 conviction, he returned to live with Jane. He acknowledged Jane had visited him and they had talked on the phone while he was in custody awaiting the current trial. Defendant denied he had been drinking on June 21.

DISCUSSION

I. Lesser Included Instructions

A. Background

The trial court did not instruct the jury on any lesser included offenses to count I for injury to a former cohabitant under section 273.5. Defendant argues instructions on three lesser included offenses should have been given: battery on a former cohabitant under section 243, subdivision (e)(1), simple battery under section 242, and simple assault under section 240. Defendant maintains the evidence did not unequivocally support a conviction under section 273.5, subdivision (a), but “clearly would have supported a conviction for one of the lesser-included offenses.” Specifically, defendant notes Jane told people she lied about her report to police, at trial she described the marks on her neck as hickeys and, while Worthington testified the marks on Jane’s neck were consistent with manual strangulation by one hand, he also acknowledged the marks could have been hickeys. Moreover, Jane did not remember defendant hitting her, and defendant testified he never touched Jane; the trailer showed no signs of a struggle—Worthington testified it was clean and orderly.

Based on evidence that defendant did not cause Jane’s injury, defendant maintains the jury could have found him guilty of the lesser offense of battery under section 243, subdivision (e)(1), which involves a harmful or offensive touching, but does not require any physical injury. Defendant notes the jury acquitted him of burglary, which was an implicit rejection of the prosecution’s theory defendant entered Jane’s home with the intent to assault Jane; as such, defendant contends the jury may have been inclined to find him guilty of a lesser offense rather than the only instructed-upon felony domestic violence charge.

The People respond there was no evidence admitted from which it could be inferred defendant committed an assault or any battery on Jane without causing an injury—“[e]ither [defendant strangled Jane] and caused a traumatic injury to her neck [citations], or [defendant] did not [strangle Jane] and the marks on her neck were hickeys, not injuries [citations].” Since the evidence showed either defendant committed the charged offense or he committed no battery or assault offense at all, the People argue there was no substantial evidence defendant committed a lesser included offense but not the charged offense. As such, the People maintain no lesser included offense instructions were required. We agree.

B. Analysis

A trial court must instruct on a lesser included offense if there is substantial evidence from which a reasonable jury could conclude the defendant is guilty of the lesser offense, but not the charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Substantial evidence in this context is defined as “‘“evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.” [Citation.]’” (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) “In deciding whether evidence is ‘substantial’ in this context, a court determines only its bare legal sufficiency, not its weight.” (People v. Breverman, supra, at p. 177, citing People v. Flannel (1979) 25 Cal.3d 668, 684.) The trial court’s decision not to instruct on a lesser included offense is reviewed de novo (People v. Waidla (2000) 22 Cal.4th 690, 733) and, in doing so, the evidence is viewed in the light most favorable to the defendant (People v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5).

Each of the lesser included offenses identified by defendant requires willful, harmful or offensive touching of the victim or an act that by its nature would directly and probably result in the application of force to a person; none of the lesser included offenses requires proof of an injury. (§§ 240, 242, 243, subd. (e)(1).) The evidence at trial established only two possibilities with respect to defendant’s physical aggression toward Jane: either defendant strangled Jane when they were inside the trailer, causing the injury to her neck, or defendant never touched or threatened her at all. Defendant said he never touched Jane. Jane told Worthington defendant had grabbed her by the neck as soon as she was inside the trailer. There was no evidence or testimony offered that defendant had either made a threatening movement to touch or strike Jane but did not (i.e., simple assault (see CALCRIM No. 915)), or that he applied force to her but did not cause any injury to her neck or any other part of her body (battery (see CALCRIM Nos. 841, 960)). The evidence is not reasonably susceptible to an inference defendant strangled Jane, but the marks on her neck were not bruises from the attack. Crediting Jane’s statements to Worthington that defendant did, in fact, strangle Jane with one hand, there is no basis to conclude the marks on her neck, consistent with one-handed strangulation as testified by Worthington, were not caused by the strangling but by something else entirely. Jane testified the marks were hickeys, despite her contrary statements to the 911 dispatcher and Worthington on the day of the attack, but she also testified she did not have another boyfriend, and she and defendant had not seen each other for months before the attack.

Based on the evidence, a trier of fact could not reasonably conclude that defendant strangled Jane, but the bruises on her neck were not caused by the strangling. To establish defendant was guilty of a lesser included offense such as simple battery or battery on a former cohabitant but not the charged offense under section 273.5, substantial evidence would have to support both that defendant strangled Jane and that he caused no injury. Based on the trial evidence, either defendant grabbed Jane by the neck when they were in the trailer together causing bruising to her neck (§ 273.5, subd. (a) (count I)) or he did not touch her or make any move that would have resulted in the application of force. There was no substantial evidence defendant committed any lesser offense but not the charged offense. The trial court did not err by not instructing on any lesser included offenses of section 273.5, subdivision (a).

II. Sentencing for Count II

A. The Parties’ Arguments

The parties dispute whether the sentence for count II should have been stayed pursuant to section 654 as part of a course of conduct indivisible from count I. Defendant argues “[t]he exact conduct that comprised the domestic violence assault charge … is the exact conduct that violated the restraining order,” and “the violation of the restraining order would not have occurred without the assault on [Jane].” Defendant contends counts I and II occurred simultaneously and were incident to one objective and an indivisible course of conduct.

The People contend strangling Jane was not the only act that could have “constituted a violation of section 166, subdivision (c).” The People note there was evidence defendant had trespassed on Jane’s property and waited for her inside her trailer; given that he had not lived there or seen her for months, the court could have reasonably determined defendant’s conduct in entering the trailer without Jane’s permission and waiting for her was itself a violation of the protective order, done with an intent to harass Jane or disturb her peace. The People argue the trial court could have then reasonably determined defendant subsequently strangled Jane with the separate criminal objective of physically harming her.

B. Analysis

At sentencing, defendant requested a stay of the sentence on count II under section 654, but did not formally object to the trial court’s refusal to do so. Even if this were construed as a failure to object, a sentence imposed in contravention of section 654 is unauthorized, and the error may be raised on appeal in the absence of an objection. (People v. Kelly (2018) 28 Cal.App.5th 886, 903, citing People v. Brents (2012) 53 Cal.4th 599, 618.)

Section 654 precludes multiple punishments for a single act: “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (Id., subd. (a).) The statute’s “reference to an ‘act or omission’ may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective.” (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) Where a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective. (People v. Osband (1996) 13 Cal.4th 622, 730–731.)

When the pertinent facts are in dispute, the applicability of section 654 is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Wynn (2010) 184 Cal.App.4th 1210, 1214–1215.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) The trial court’s determination is reviewed in the light most favorable to the judgment and presumes the existence of every fact the trial court could have reasonably deduced from the evidence. (Id. at pp. 1312–1313.)

The trial court did not make any express findings related to section 654 other than noting the section did not apply, and it subsequently imposed consecutive sentences for counts I and II. On appeal, we presume the trial court determined counts I and II were not based on a single physical act and that defendant harbored a separate intent and objective for each offense arising from a course of conduct. (See People v. Osband, supra, 13 Cal.4th at pp. 730–731.)

Defendant was charged with injuring a former cohabitant in violation of section 273.5, subdivision (a) (count I) and for contempt of court for violating a criminal protective order pursuant to section 166 (count II). To determine whether punishment for both counts I and II violates section 654’s preclusion on multiple punishments, we first consider whether the different crimes charged were completed by a “single physical act.” (Corpening, supra, 2 Cal.5th at p. 311, citing People v. Jones (2012) 54 Cal.4th 350, 358.) Crimes are considered completed by a single physical act when the same physical action completes the actus reus for each charged crime. (Corpening, supra, at pp. 312–313; People v. Jones, supra, at pp. 353, 360.)

Count I required the prosecutor to prove (1) defendant willfully inflicted a physical injury on his former cohabitant; (2) the injury inflicted by defendant resulted in a traumatic condition; and (3) defendant did not act in self-defense or in defense of someone else. (§ 273.5, subd. (a); CALCRIM No. 840.) Count II was charged under section 166, subdivision (c)(4) (section 166(c)(4) or § 166(c)(4)), which is a penalty provision mandating a greater sentence for violating a court order under section 166 when certain additional circumstances are proven. Under section 166, subdivision (c), the prosecutor was first required to prove defendant violated a particular type of protective order: (1) the court issued a protective order; (2) the court order was a protective order issued under section 1203.097, subdivision (a)(2); (3) defendant knew of the court order; and (4) defendant had the ability to follow the court order. (§ 166, subd. (c)(1), (4); CALCRIM No. 2701.) To prove the violation was subject to the penalty provision of section 166(c)(4) as charged in the information, the prosecutor was also required to prove (1) defendant’s conduct involved an act of violence or a credible threat of violence and (2) the violation of the protective order was a second or subsequent conviction of such an order within seven years. (§ 166(c)(4); CALCRIM No. 2703.) The jury was required to make separate, special findings for each of these two penalty provision requirements under section 166(c)(4); the jury found true both special findings.

To determine whether two crimes were committed by a single act for purposes of sentencing under section 654, in the absence of some circumstance foreclosing its sentencing discretion, the trial court may generally consider all the evidence introduced at trial without regard to the verdicts. (People v. McCoy (2012) 208 Cal.App.4th 1333, 1340.) However, “where there is a basis for identifying the specific factual basis for a verdict, a trial court cannot find otherwise in applying section 654.” (Id. at p. 1339.) For example, in People v. Siko (1988) 45 Cal.3d 820, 823, the trial court imposed three consecutive sentences on counts of lewd and lascivious conduct, rape, and sodomy. The charging document and verdict form specified the lewd conduct consisted of the rape and sodomy acts. (Id. at p. 826.) While the evidence at trial may have reasonably suggested other possible factual bases for the lewd conduct, the verdict form and charging document’s identification of the specific factual basis for the lewd conduct foreclosed the People from advancing an alternative basis for purposes of sentencing under section 654. (People v. Siko, supra, at p. 826.) As such, the sentence for the lewd conduct count had to be stayed because it was based on the same acts as the rape and sodomy counts. (Ibid.)

Here, neither the information nor the verdict specifically articulated the precise factual bases supporting each count; thus, neither foreclosed the trial court’s sentencing discretion under section 654. Rather, it is the evidence at trial that foreclosed a determination the two counts here were predicated on more than a single act. There is no question count I is necessarily based on defendant’s act of strangling Jane and leaving bruises on her neck—it was the only evidence of a harmful or offensive touching resulting in injury to support a guilty verdict under section 273.5. As to count II, although the specific act of violence or credible threat of violence found true for the penalty provision under section 166(c)(4) was not identified in the jury’s special finding, the only evidence supporting this true finding was defendant’s act of strangling Jane.

It was the prosecutor’s theory that counts I and II were completed by defendant’s single act of strangling Jane. In closing, the prosecutor argued “[t]he defendant stood up, grabbed her throat, left those bruises on her. He is guilty of Count One.” As to count II, the prosecutor maintained that defendant willfully violated the 2015 protective order “when he took his hand and grabbed [Jane’s] throat.” The prosecutor then explained to the jury that if they found “defendant violated the court order when he grabbed [Jane],” they would need to make two special findings, one of which included determining whether the violation involved an act of violence or a credible threat of violence. The prosecutor argued that, “[i]n this case it’s an act of violence, using physical force, action or treatment. So when [defendant] used physical force against [Jane] by grabbing her neck, he violated that order … [and h]e is guilty of Count Two.”

Despite the prosecutor’s theory, which itself does not bind the trial court’s section 654 determination at sentencing (People v. Leonard (2014) 228 Cal.App.4th 465, 500), the People maintain given the evidence, count II could have been based on a different violation of the 2015 protective order. There was evidence defendant entered Jane’s home without permission, and it could have been inferred he did so to harass her, in violation of the 2015 protective order. By trespassing into her home with an intent to harass, the People maintain defendant exhibited a separate intent or objective from strangling Jane when she later arrived at home. We agree there was evidence the 2015 protective order was violated by other conduct separate from defendant’s act of strangling Jane. However, defendant was not sentenced solely for a violation of the 2015 protective order under section 166. Rather, defendant was charged and sentenced under the penalty provision of section 166(c)(4), which requires two findings beyond the violation of a protective order, including that the charged violation of the protective order involved an act of violence or a credible threat of violence (§ 166(c)(4); CALCRIM No. 2703). The sole evidence at trial of an act of violence was defendant’s strangling of Jane.

As to a credible threat of violence, the trial court properly instructed the jury that “[a] person makes a credible threat of violence when he or she willfully and maliciously communicates a threat to a victim of or a witness to the conduct that violated a court order. The threat must be to use force or violence against that person or that person’s family. The threat must be made with the intent and the apparent ability to carry out the threat in a way to cause the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.” (See CALCRIM No. 2703.) Although theoretically the jury was permitted to base its section 166(c)(4) special finding on a credible threat of violence, there was no evidence of such a threat. First, there was no evidence defendant verbally threatened Jane or her family. Jane told Worthington defendant strangled her immediately when she walked in the door, and defendant said nothing to her. On the stand, Jane admitted she and defendant talked while inside the trailer, but there was no indication he threatened her in any way during that time—the only evidence was that he strangled her.

Second, while there are factual situations where physical presence alone could sufficiently communicate a threat of violence, defendant’s single act of entering Jane’s home without her permission was not sufficient to support such an inference here. Beyond trespassing, there was no pattern of conduct or a combination of statements and conduct from which a credible threat of violence against Jane or her family could be reasonably inferred to have been communicated by defendant’s uninvited presence in her home. Indeed, the prosecutor argued to the jury that defendant’s violation of the 2015 protective order involved an act of violence—strangling her—not a credible threat of violence. While not controlling, the prosecutor’s argument was an accurate representation of the evidence admitted at trial.

With no substantial evidence of an act of violence separate from the strangling or a credible threat of violence, counts I and II were both necessarily predicated on defendant’s single act of strangling Jane, and section 654 applies to bar multiple punishments for this single act. (Corpening, supra, 2 Cal.5th at pp. 382–383, 386 [only if it is concluded the case involves more than a single act does the analysis proceed to determine whether a course of conflict reflects more than one objective or intent].)

On count II, the trial court sentenced defendant to a consecutive term of eight months (one-third the middle term). To effectuate section 654, the trial court must impose a full term on count II and stay execution of that term. (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197–1198.) We exercise our inherent authority to correct an unauthorized sentence (People v. Smith (2001) 24 Cal.4th 849, 852) by modifying the judgment to impose a sentence on count II in case No. 50674 of a consecutive two-year term (the full middle term), stayed pursuant to section 654. We direct the trial court to amend the abstract of judgment accordingly.

DISPOSITION

The judgment is modified to reflect the imposition of the middle term of two years for criminal contempt pursuant to section 166, subdivision (c)(4) (count II), stayed under section 654. The matter is remanded to the trial court with instructions to prepare a corrected abstract of judgment so reflecting, and to forward the corrected abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.

MEEHAN, J.

WE CONCUR:

LEVY, Acting P.J.

PEÑA, J.