Does section 654 of the California Criminal Code apply to a defendant who assaulted an elderly woman for the purpose of having sex with her?

Defendant argues he assaulted the victim for the sole purpose of having sex with her. He relies on the prosecutor's argument during sentencing that sex was the only thing on defendant's mind when he left the adult bookstore drunk and that he "was going to injure and rape the first woman he came across that evening, regardless of age." But the prosecutor's statements were not evidence. (People v. Richardson (2008) 43 Cal.4th 959 [77 Cal.Rptr.3d 163, 198].)

Although defendant did testify he was aroused when he left the bookstore, he did not remember when he decided he wanted to have sex with the victim. According to him, "It just happened. I didn't plan it out or anything. . . . I didn't think about it at all. It just happened." Contrary to his assertion on appeal, he never testified he repeatedly hit her in order "[t]o accomplish [having sex with her]." Indeed, as the Attorney General points out, defendant, a 21-year-old, almost six-foot tall, 155-pound man, "could have forced the petite and elderly victim to do whatever he wanted without inflicting so much physical injury." Finally, the fact the crimes "occurred within a very short period of time" may be relevant, but it is not determinative, as defendant acknowledges. (People v. Evers (1992) 10 Cal.App.4th 588, 603, fn. 10.)

Because the evidence supports the trial court's determination defendant had separate intents in committing the elder abuse and the rape, section 654 does not preclude punishment for both even though the violations may have been part of an indivisible course of conduct. (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)