People v. Saffle

• Decision Date: 09 March 1992
• Docket Number: No. F014235,F014235
• Citation: 4 Cal.App.4th 434,5 Cal.Rptr.2d 648
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dewey Gene SAFFLE, Defendant and Appellant.

Page 648

5 Cal.Rptr.2d 648

4 Cal.App.4th 434

The PEOPLE, Plaintiff and Respondent, v. Dewey Gene SAFFLE, Defendant and Appellant.

No. F014235.

Court of Appeal, Fifth District, California.

March 9, 1992.

Certified for Partial Publication ^*

Review Denied June 10, 1992.

[4 Cal.App.4th 436] Andrew Cappelli, Oakland, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Shirley A. Nelson and John A. O'Sullivan, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

BUCKLEY, Associate Justice.

Dewey Gene Saffle was convicted by trial of count one, sodomy, a violation of Penal Code section 286, subdivision (c); ¹ count two, foreign object penetration, a violation of section 289, subdivision (a); count three, false imprisonment, a violation of section 236; count four, assault with a deadly weapon, a violation of section 245, subdivision (a) and a weapon use enhancement within the meaning of section 12022, subdivision (b) as to the first three counts.

Saffle was sentenced to the upper term of eight years on count one, the upper term of eight years on count two and to the upper term of three years on count three designated as the principal term. The sentences imposed on these counts were ordered to run fully consecutive. He was sentenced to an additional one year for each of the weapons use enhancements charged in counts one through three for an aggregate term of twenty-two years. Saffle received the upper term on count four, which sentence was stayed pursuant to section 654. ²

FACTS

In August 1988, Kristi A. resided with Saffle's brother, Tommy, her two young daughters and with Saffle, who had moved in and was staying with them temporarily.

In the early morning hours of August 28, 1988, Kristi was at home sleeping on the couch. Her younger daughter Ashley was also in the house. Saffle knocked on the door and told Kristi he wanted to get some clothing. He went into the bedroom and then returned to the room where she was on the couch.

Saffle suddenly jumped on top of Kristi, held a knife to her throat, told her not to scream and to take off her clothes. Ashley began to cry; Saffle ordered Kristi to "shut her up." Kristi asked Saffle not to hurt them, whereupon he told her to shut up and do as he said. Saffle started to lift up her nightgown and then told her to go into the bedroom. She complied and Saffle followed her there.

With the knife in his hand, Saffle ordered Kristi to lie down on the bed and then ordered her to turn over on her stomach. After she did so, Saffle took off her nightgown and pulled her underwear off. Holding the knife to Kristi's throat, he put his finger in her anus. She asked Saffle to stop; he told her to "shut up." With the knife still at her throat, Saffle then removed his finger and inserted his penis into her anus. Saffle continued sodomizing Kristi until Ashley started screaming. Kristi was ordered to "shut her up." She managed to calm her daughter whereupon Saffle continued sodomizing her.

At that point, someone began knocking on the apartment door. Saffle told Kristi he thought it was the police and would not allow her to answer the door. He then told her he was sorry, but said that if she told anyone, he would kill her and her children he would "make it worth his while to do 20 years." Since Saffle was still holding the knife, she believed his threats. The knocking continued, so Saffle finally agreed to let her answer the door. Two men with whom Kristi was acquainted were at the door; however, she did not tell them what had happened because of the threats made to her.

Kristi stayed in the apartment for a few days after the attack. During that time, Saffle threatened her on two more occasions with a knife. She then moved out of the apartment and told Saffle's brother Tommy what had happened. Several days later, she reported the attack to the police.

DISCUSSION

All of the errors cited by Saffle on appeal involve sentencing issues. We address them in the order raised by the briefs.

I Was the False Imprisonment Offense Divisible from the Sex Offenses?

Saffle argues that the false imprisonment of Kristi was committed for the purpose of committing the sex offenses and the court violated section 654 by imposing punishment for that conviction. The People respond that the crime of false imprisonment followed the completion of the sexual acts and was to prevent Saffle's detection as the attacker. Thus the People assert section 654 is not applicable here. Section 654 provides,

"An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other."

Section 654 applies when there is a course of conduct which violates more than one statute but constitutes an indivisible transaction. (People v. Maese (1980) 105 Cal.App.3d 710, 726, 164 Cal.Rptr. 485.) The purpose of section 654 is to ensure that a defendant's punishment will be commensurate with his culpability. (People v. Perez (1979) 23 Cal.3d 545, 550-551, 153 Cal.Rptr. 40, 591 P.2d 63.) Whether a course of criminal conduct is a divisible transaction which could be punished under more than one statute within the meaning of section 654 depends on the intent and objective of the actor. (People v. Beamon (1973) 8 Cal.3d 625, 637, 105 Cal.Rptr. 681, 504 P.2d 905.)

The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. (People v. Murphy (1980) 111 Cal.App.3d 207, 213, 168 Cal.Rptr. 423.) The factual finding that there was more than one objective must be supported by substantial evidence. (People v. Macias (1982) 137 Cal.App.3d 465, 470, 187 Cal.Rptr. 100.)

Saffle cites People v. Failla (1966) 64 Cal.2d 560, 51 Cal.Rptr. 103, 414 P.2d 39 and People v. Martinez (1980) 109 Cal.App.3d 851, 167 Cal.Rptr. 477 as precluding divisibility here. In Failla, the victim was in her bedroom and a roommate was asleep in an adjacent bed. The defendant, after gaining entry to the house, instructed the victim to be quiet and to go to the next room. The victim followed instructions and went into the next room where the defendant exposed himself. The court held the defendant's course of conduct after he first accosted his victim comprised an indivisible transaction. The technical kidnapping of the victim was intended merely to take her out of the presence of her roommate so the defendant could pursue his sexual purpose in the adjoining room without fear of interruption. Accordingly, both the kidnapping and the sexual misconduct were incident to one objective and double punishment was prohibited. (64 Cal.2d at p. 570, 51 Cal.Rptr. 103, 414 P.2d 39.)

In Martinez, the defendant had been convicted of two offenses, assault with intent to commit rape and false imprisonment by use of force and violence. The defendant had assaulted his victim, dragged her under a bridge and after he desisted from his attempted rape, held her for a few moments to attempt to convince her not to complain to the police. The court held that these actions involved the same criminal event and, pursuant to section 654, only one sentence could be served for that sequence of events. (109 Cal.App.3d at p. 858, 167 Cal.Rptr. 477.)

The People contend the sexual attacks were completed at the time of the false imprisonment, and that Saffle is guilty of a separately punishable act, citing People v. Nguyen (1988) 204 Cal.App.3d 181, 251 Cal.Rptr. 40. In that case Nguyen and an accomplice, both armed, entered a market. The accomplice escorted the clerk to a rear bathroom and forced him to lie face down on the floor. Nguyen remained in the front of the market and opened the cash register. Nguyen's crime partner shot the clerk in the back. Nguyen argued the trial court had violated section 654 by imposing consecutive sentences for attempted murder and for the robbery. The court noted that acts constituting gratuitous violence against a helpless and unresisting victim have traditionally been viewed as not incidental to robbery for purposes of section 654. (Id. at p. 190, 251 Cal.Rptr. 40.) Nguyen recognized that section 654 had not been applied by the courts consistently. However, the court believed it to be reasonably clear that a separate act of violence against an unresisting victim or witness, whether gratuitous or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for purposes of section 654. If the trier of fact determines the crimes have different intents and motives, multiple punishments are appropriate. (Id. at p. 193, 251 Cal.Rptr. 40.)

Saffle makes a compelling argument that the victim here did not suffer any additional injury, nor did the act of false imprisonment represent gratuitous violence against an unresisting victim. Initially, the facts here appear more analogous to People v. Martinez, supra, 109 Cal.App.3d 851, 167 Cal.Rptr. 477, than to People v. Nguyen, supra, 204 Cal.App.3d 181, 251 Cal.Rptr. 40. However, unlike the victim in Martinez, Kristi, after the sexual offenses were completed, was subjected to threats of future bodily injury to herself and her children by the knife-wielding Saffle. While lacking the overt gratuitous violence of Nguyen, the conduct displayed by Saffle was, in some ways, more fraught with terror and implicit violence. We perceive a critical distinction between a situation (Martinez ) where a person is held for a few moments in an attempt to convince her not to complain to the police and a situation where a victim is restrained while being threatened with future violence to herself and her...