People v. Pouvifata CA3 ( 2024 )

Filed 5/21/24 P. v. Pouvifata CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C098480
Plaintiff and Respondent, (Super. Ct. No. CRF210000548)
v.
BENJAMIN SAMUEL POUVIFATA,
Defendant and Appellant.
When defendant Benjamin Samuel Pouvifata saw a text message that led him to
believe that V.O.,1 who lived with defendant and had a child with him, was cheating,
defendant told V.O. he was going to kill her, punched her in the living room of their
1 To protect their privacy, we refer to the parties and a witness by their initials. (Cal.
Rules of Court, rule 8.90(a)(1), (b)(4), (10).
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townhouse (Pen. Code, § 273.5, subd. (a);2 count 8), dragged her into the kitchen and
slammed her head against the sink (§ 245, subd. (a)(4); count 6), and then dragged her to
the stairs, shoved her head between the railings, and kicked the back of her neck (§ 273.5,
subd. (a); count 12). Thwarted in his efforts to continue beating V.O. when she fled to a
neighbor’s townhouse, defendant retrieved a firearm and shot V.O. (§§ 664/187, subd. (a),
12022.53, subd. (d); count 2), as well as the neighbor who defended her, G.B. A jury
found defendant guilty of attempted murder of V.O. and G.B., as well as numerous
assaultive offenses, including those alleged in counts 6, 8, and 12. The trial court
sentenced defendant to an indeterminate term of 64 years to life and a determinate term
of 14 years.
On appeal, defendant claims the trial court’s failure to stay the terms on counts 2,
6, 8, and 12 violated section 654. We disagree and will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
In January 2021, defendant was V.O.’s boyfriend and they lived together in a two-
story townhouse. They had a son together. V.O. and defendant were also raising his son.
On January 15, 2021, upon coming home from work, V.O. became upset when she
learned that both children had been outside all day by themselves. After visiting with a
neighbor, T.W., V.O. brought the children inside their home and started making dinner.
Defendant was inside. Defendant had been drinking and was intoxicated. They got into
an argument. V.O. asked him why the children were outside all day. Defendant said the
children were being watched and were fine.
V.O.’s cell phone beeped as if she had received a text message. V.O. had plugged
her phone in by the stereo speakers. V.O. was coming in the front door when she heard
2 Undesignated statutory references are to the Penal Code.
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the beep. Two weeks before, V.O. had sent G.B. a nude photograph of herself. G.B.
might have been sending V.O. a text. V.O. was walking up to where the phone was
plugged in, when defendant grabbed the phone before V.O. could see who the text was
from. Defendant said, “You fucking whore. You cheating on me again. I’m going to kill
you.” When defendant said this, they were in front of the couch. Defendant hit V.O. with
his fist multiple times on the side of her head. V.O. told the children to run and get help.
Defendant grabbed V.O. by the neck. At that point, they were in front of a desk,
almost in the kitchen. Defendant dragged V.O. by the neck, shoved her head into the
kitchen sink that was partially filled with water, and held her under for 30 to 45 seconds
until she unplugged the sink to let the water out. After V.O. unplugged the sink,
defendant hit her head on the counter in front of the sink.
Defendant dragged V.O. over to the stairs. She got free for a second to try to run
out the door. Defendant locked the door and pushed V.O. to the top of the stairs.
Defendant shoved V.O.’s head between the railings and started kicking the back of her
neck. Defendant was yelling and screaming that he was going to kill V.O. V.O. thought
she was going to die. V.O. told defendant she wanted to tell him something before she
died. Defendant stopped and asked what she had to tell him. V.O. got up, unlocked the
door, and was able to get out before defendant got to the door.
T.W., in the adjacent townhouse had heard defendant and V.O. fighting, called 911,
and told her granddaughter to get G.B. G.B. arrived while T.W. was on the phone with
the police. Defendant chased V.O. to T.W.’s townhouse. He shoved her to the ground
and was on top of her punching her face in front of T.W.’s front door. When defendant
started to come in the door, V.O. tried unsuccessfully to pull him back. Once inside,
defendant rushed at G.B., who threw a heavy ashtray, hitting defendant in the head.
Defendant stepped back and then came at G.B. again. G.B. punched defendant and he
fell down. G.B. told defendant not to move. V.O. kicked defendant in the face. She was
screaming, “how can you do this to me?” V.O. ran back to their townhouse to hide
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defendant’s shotgun and rifle. Defendant did not get up for 10 minutes. V.O. returned to
T.W.’s townhouse and saw defendant on the ground. He was saying, “stop, I’m done.”
After G.B. believed enough time had passed for things to settle down, he let defendant
get up and leave. V.O. locked T.W’s front door.
V.O. went to the bathroom to clean up the blood on her face. She had a “goose
egg” that was bleeding on her head, her eyes were swollen, her nose was bleeding, and
her jaw was numb. After a minute or two, G.B. came to the bathroom door, asked if she
was all right, and started to open the bathroom door. Defendant kicked in the front door
of T.W.’s townhouse and pointed a rifle at G.B. G.B. fled into the bathroom and started
to close the door, but defendant swung it open and started shooting with a military-style
weapon with a large clip. G.B. jumped on V.O. and pushed her down against the wall.
V.O. was shot in both arms. G.B. was shot in the stomach, chest, side, and back of the
head.
V.O. and G.B. grabbed defendant’s gun and pushed it back against him. They
pushed defendant into a hot tub in the kitchen where G.B. was able to get the gun away
from defendant. V.O. tried to grab the gun from G.B. but defendant’s sister had arrived
and took it from G.B. G.B. walked out. Defendant got up, punched V.O., threw her
across a glass table, and stomped on her head, while calling V.O. a whore and threatening
to kill her. Then defendant left.
B. Trial
At trial, the jurors were instructed that they must agree on the specific act
defendant committed for each crime.
In closing argument, the prosecutor argued that defendant attempted to murder
V.O. (as alleged in count 2) when he went back to his townhouse, got his rifle and loaded
it, walked back to T.W.’s townhouse, kicked in the door, and shot V.O. The prosecutor
described counts 6, 8 and 12 as the counts involving “domestic violence.” The
prosecutor said that count 8 was based on defendant punching V.O. in the face and head
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immediately after she received the text message.3 Count 6 arose when defendant
slammed V.O.’s head against the kitchen counter. Count 12 involved the injury V.O.
suffered when defendant kicked her in the neck when she was on the stairs with her head
between the rails.
The jury found defendant guilty of two counts of premeditated attempted murder
(§§ 187/664; counts 1 and 2), two counts of assault with a semiautomatic firearm (§ 245,
subd. (b); counts 3 and 4), grossly negligent discharge of a firearm (§ 246.3; count 5),
assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count 6), two
counts of criminal threats (§ 422; counts 7 and 9), two counts of corporal injury to a
cohabitant/coparent (§ 273.5, subd. (a); counts 8 and 12), two counts of child abuse
(§ 273a, subd. (a); counts 10 and 11), arson of an inhabited structure (§ 451, subd. (b);
count 13), and two counts of resisting arrest (§ 148, subd. (a)(1); counts 14 and 15).4 The
jury found true multiple firearm use and great bodily injury enhancements, as well as
aggravating circumstances under California Rules of Court, rule 4.421. The jury found
defendant not guilty on one count, a misdemeanor battery charge involving G.B. (§ 242;
count 16).
C. Sentencing
At sentencing, the trial court asked the prosecutor to comment on the application
of section 654 to the determinate term crimes. As relevant here, the prosecutor responded
that count 6 covered the point in time when V.O.’s “face was forced into the water in the
sink.” Count 8 covered when defendant “was punching in Ms. V.O.’s face and slamming
3 The prosecutor initially told the jury: “So one of those counts, the [section] 273.5, you
can pick which one you’d like.” But then the prosecutor said: “No. Let me take that
back. That would be Count 8. That is going to be the swelling to her face, the redness to
her face from getting punched in the face and the head by the defendant.”
4 The facts underlying counts 13 through 15, which relate to defendant’s conduct after he
left T.W.’s home the second time, are not relevant to this appeal.
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her face into the edge of the countertop.” Count 12 “was the point of time when Ms. V.O.
was placed between the banister’s railings, essentially, and kicked [her] in the head.” The
prosecutor concluded that “given the argument to the jury of what those counts
represented and the separate convictions for them, [section] 654 would not come into
play.”5
In sentencing, the trial court did not discuss its reasoning under section 654 for
imposing consecutive sentences on counts 6, 8, and 12, but simply referred to these
counts as the “non-stayed terms” on the chart in the prosecution’s sentencing
memorandum.6 The trial court selected count 12 as the principal term, sentencing
defendant to the middle term of three years in state prison for injury of a
5 We agree with the parties that because the prosecutor argued to the jury in closing that
count 6 involved defendant slamming V.O.’s head on the kitchen counter, not forcing her
face in the sink, and count 8 involved punching V.O.’s face and head, not punching her
face and slamming her head on the kitchen counter, we will disregard the prosecutor’s
argument on counts 6 and 8 at sentencing for purposes of analyzing the application of
section 654. Courts consider the acts on which the prosecution based each charge in
argument to the jury for purposes of applying section 654. (See People v. McKinzie
(2012) 54 Cal.4th 1302, 1369 [“The Attorney General concedes . . . that defendant could
not be punished for both carjacking and kidnapping for robbery because the prosecutor
argued to the jury that the victim’s car was the object of the robbery”], disapproved on
another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.) Otherwise, the
punishment would not relate to the acts on which the jury based its verdict. (People v.
McCoy (2012) 208 Cal.App.4th 1333, 1339 [“where there is a basis for identifying the
specific factual basis for a verdict, a trial court cannot find otherwise in applying section
654”].)
6 In defendant’s sentencing memorandum, as well as in argument at the sentencing
hearing, defense counsel did not object to the trial court’s failure to stay execution of
sentence on counts 2, 6, 8, or 12 under section 654. Defendant correctly argues—and the
People do not dispute—that defendant did not thereby waive this claim on appeal.
“ ‘Errors in the applicability of section 654 are corrected on appeal regardless of whether
the point was raised by objection in the trial court or assigned as error on appeal.’ ”
(People v. Hester (2000) 22 Cal.4th 290, 295; see also People v. Mendoza (2022)
74 Cal.App.5th 843, 854.)
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cohabitant/coparent, with a four-year enhancement for great bodily injury (§§ 273.5,
subd. (a), 12022.7, subd. (e)), and sentencing defendant to one year (one-third the middle
term) on count 6 for assault likely to cause great bodily injury (§ 245, subd. (a)(4)) and
one year (one-third the middle term) on count 8 for injury to a cohabitant/coparent
(§ 273.5, subd. (a)).
Defendant’s total aggregate sentence was an indeterminate term of 64 years to life,
composed of two terms of seven years to life for attempted murder (§§ 187/664; counts 1
and 2) with two enhancements of 25 years to life for intentional discharge of a firearm
causing great bodily injury (§ 12022.53, subd. (d)), plus a determinate term of 14 years,
composed of nine years on counts 6, 8 and 12, eight months (one-third the middle term)
for criminal threats (§ 422; count 7), two terms of one year four months (one-third the
middle term) for child abuse (§ 273a, subd. (a); counts 11 and 12), and one year eight
months (one-third the middle term) for arson of an inhabited structure (§ 451, subd. (b);
count 13). The trial court credited defendant for time served on two counts of
misdemeanor resisting arrest (§ 148; counts 14 and 15) and stayed sentences on all
remaining counts and suspended sentences on all other enhancements.
DISCUSSION
Defendant contends the trial court erred by imposing multiple punishments on the
crimes charged in counts 2, 6, 8, and 12, during which he asserts he shared a single intent
and objective, i.e., to kill V.O. Specifically, defendant argues that his acts were not
sufficiently independent to give him time to pause and reflect. He contends the acts in
the townhouse charged in counts 6, 8, and 12 occurred in quick succession, and while his
attempted murder of V.O. charged in count 2 was separated in time, there was no
interruption in his assaultive conduct during which he could pause to reflect. We
disagree.
Section 654 provides in relevant part that “[a]n act or omission that is punishable
in different ways by different provisions of law may be punished under either of such
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provisions, but in no case shall the act or omission be punished under more than one
provision.” (§ 654, subd. (a).)
The reference in section 654 to an “act or omission” embraces both a discrete
physical act and a course of conduct encompassing several acts pursued with the same
objective. (People v. Corpening (2016) 2 Cal.5th 307, 311.) We apply a two-step inquiry
to determine if section 654 bars multiple punishments. (Ibid.) In step one, if the
defendant completed the crimes by a “ ‘single physical act,’ ” he cannot be punished
more than once for the act. (Ibid.) In step two, where the case involves more than a
single act—in other words, a course of conduct—we “consider whether that course of
conduct reflects a single ‘intent and objective’ or multiple intents and objectives.” (Ibid.)
Here, defendant does not contend that more than one physical act was involved in counts
2, 6, 8, and 12. Defendant asserts rather that the acts charged in these counts constituted
an uninterrupted course of conduct with no time for him to pause and reflect. Thus, we
proceed to analyze step two.
In step two, the defendant’s intent and objective determines “ ‘[w]hether a course
of criminal conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 . . . .’ ” (People v. Correa (2012) 54 Cal.4th 331, 336.) If the
defendant maintains a single objective over multiple offenses, he can be punished for
only one of those offenses. (Ibid.) However, “a course of conduct divisible in time,
although directed to one objective, may give rise to multiple violations and punishment.”
(People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; see also People v. Louie (2012)
203 Cal.App.4th 388, 399.) The proximity in time between the offenses is not
necessarily determinative of whether multiple punishments are prohibited. (People v.
Jackson (2016) 1 Cal.5th 269, 354; People v. Trotter (1992) 7 Cal.App.4th 363, 366-368
[two assaults on the same victim one minute apart may be punished separately].)
Accordingly, to determine whether criminal offenses may be temporally divisible, courts
consider whether the defendant had “opportunity to reflect and to renew his or her intent
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before committing the next [offense] . . . .” (People v. Gaio (2000) 81 Cal.App.4th 919,
935; see also People v. Lopez (2011) 198 Cal.App.4th 698, 717 [“ ‘multiple crimes are
not one transaction where the defendant had a chance to reflect between offenses and
each offense created a new risk of harm’ ”]; People v. Kelly (2016) 245 Cal.App.4th
1119, 1136 [“[I]f a series of acts are committed within a period of time during which
reflection was possible [citation], section 654 does not apply”].)
Whether the defendant engaged in separate crimes involving separate objectives,
or an indivisible course of conduct pursuant to a single objective, is a question of fact for
the trial court. (People v. Brents (2012) 53 Cal.4th 599, 618.) If the court makes no
express findings, as apparently occurred here, “a finding that the crimes were divisible is
implicit in the judgment and must be upheld if supported by substantial evidence.”
(People v. Lopez, supra, 198 Cal.App.4th at p. 717.) The trial court’s findings of separate
intents are reviewed “ ‘in a light most favorable to the judgment,’ ” meaning we
“ ‘presume in support of the court’s conclusion the existence of every fact the trier of fact
could reasonably deduce from the evidence.’ ” (People v. Andra (2007) 156 Cal.App.4th
638, 640-641.)
In this instance, assuming defendant had the same intent to kill throughout as
defendant claims, substantial evidence supports the trial court’s imposition of separate
sentences on counts 2, 6, 8, and 12. There can be no real question that the evidence
showed defendant had time to reflect and renew his intent to kill V.O. when he returned
to T.W.’s home with a military-style rifle and shot V.O., the factual basis for the attempted
murder charged in count 2. Defendant chased V.O. to T.W.’s townhouse to continue
beating V.O., defendant was beaten in a fight with G.B., and said, “stop, I’m done,”
before G.B. let defendant get up and return to his place. Not only did defendant have
ample time to reflect and renew his intent to kill before attempting to murder V.O., but
also defendant’s statement that he was giving up followed by his actions in returning
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armed to T.W.’s home to shoot V.O. can only be interpreted as involving reflection and
renewed intent.
The actions on which counts 6, 8, and 12 are based occurred within a short space
of time but in different locations in the townhouse, and involved defendant forcing V.O.
to move from one location to another while he escalated the level of violence and risk of
harm to V.O. The evidence showed that defendant punched V.O. in the face somewhere
between the front door and the kitchen when she heard her cell phone beep and defendant
got to the phone before her. After punching V.O., defendant had time to reflect and cease
the assault, but instead dragged V.O. by the neck into the kitchen where he slammed her
head on the kitchen counter. Again, defendant had time to reflect and end the attack at
this point, but defendant dragged V.O. to the stairs where she tried to escape but he
pushed her head between the railings and kicked her in the back of the neck.
Accordingly, substantial evidence supports findings that defendant shooting V.O.
in T.W.’s townhouse, punching V.O. in the living room in the townhouse she shared with
defendant, then slamming her head on the counter in the kitchen, and kicking her neck on
the stairs were part of a divisible course of conduct allowing for multiple punishments.
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DISPOSITION
The judgment is affirmed.
/s/
WISEMAN, J.
We concur:
/s/
DUARTE, Acting P. J.
/s/
MESIWALA, J.
 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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