P.
v. Barron
Filed 2/21/13 P. v. Barron
CA2/6
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH STEVEN BARRON,
Defendant and Appellant.
2d Crim. No. B237776
(Super. Ct. No. 2011019301)
(Ventura
County)
Joseph
Steven Barron appeals from the judgment following jury trial of his convictions
of assault by means of force likely to inflict great bodily
§ 245, subd. (a)(1)
name="_ftnref1" title="">[1] (assault GBI)), conspiracy
to commit assault GBI (§ 182,
subd. (a) (conspiracy)), and three counts of battery (§ 242). The jury found the gang benefit allegations
true as to the assault GBI and conspiracy (§ 186.22, subd. (b)(1)), and
the batteries (id., subd. (d)). The trial court sentenced appellant to five
years in prison, including concurrent sentences for assault GBI and conspiracy.
by imposing separate sentences for the conspiracy and assault GBI, the trial
court ignored the section 654 prohibition against punishing a defendant for
crimes which shared the same objectives.
We agree and modify the judgment to stay execution of sentence for
conspiracy pursuant to section 654.
FACTUAL BACKGROUND
Sur
Town Chiques and Colonia Chiques are rival Oxnard
gangs. Appellant is an associate of Sur
Town Chiques. Sur
Town members call Colonia Chiques
"ca-ca boys." According to
Oxnard Police Department Detective Alex Arnett, gang members have a duty to
protect their territory and initiate fights against their rivals. By fighting rivals, gangs place all the other
gangs on notice that they will protect their neighborhood and are not afraid to
fight. Such conduct also demonstrates to
the entire community that the gang controls its territory, which fosters fear
and intimidation. Arnett also described
"crim[ing] in," and other means of joining a gang. "Crim[ing] in" involves committing
crimes, including assaults upon gang rivals.
On
May 28, 2011, Joel Rabadan,
his girlfriend, Lorraina, three of their children, and Maria Rabadan were at
the Oxnard home of Edelmira
Lazaro. They all left to go to the
store, and started entering two cars. A
green SUV approached, made a U-turn, and stopped near Joel. The front passenger got out, approached Joel
and asked where he was from. Someone in
the SUV said, "Sur Town,"
and "fuck ca-ca." The front
passenger started hitting Joel. Seconds
later, appellant also got out of the SUV and started hitting Joel. One assailant displayed a switchblade. The assailants also hit or pushed Joel's young
son, Maria and Edelmira. They left in
the SUV, yelling "Sur Town."
The
police found the SUV parked in a driveway, and arrested appellant as he
approached it. The SUV contained a Sur
Town CD, a shank, and a hat like those commonly worn by Sur Town gang members.
Appellant
did not testify at trial. He called
police witnesses and questioned them about variations in witnesses'
descriptions of the assailants.
Appellant argued that he was not at the scene of the attack and that he
was mistakenly identified as one of the assailants.
DISCUSSION
Appellant
was convicted of committing an assault GBI upon Joel, and conspiring to assault
him. (§§ 245, subd. (a)(1), 182, subd.
(a)(1).) He contends that by imposing
separate sentences for assault GBI and conspiracy, the trial court ignored the
section 654 prohibition against punishing a defendant for crimes that shared
the same objectives. We agree.
Section
654, subdivision (a) provides that "[a]n act or omission that is
punishable in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more
than one provision." The statute
prohibits punishment for two crimes arising from a single, indivisible course
of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
Because
of the section 654 prohibition against multiple punishment, a defendant may not
be punished for both a conspiracy to commit a crime and the crime itself where
the conspiracy and the substantive offense shared the same objectives. (People
v. Briones (2008) 167 Cal.App.4th 524, 529; People v. Ramirez (1987) 189 Cal.App.3d 603, 615;
180-181.) "Our Supreme Court has
recently debated the continuing validity of the traditional section 654
inquiry. [Citations.] But . . . the basic
inquiry remains." (
625, 627, fn. 2.)
Citing
People v. Vargas (2001) 91
Cal.App.4th 506, 517, respondent argues that the trial court properly sentenced
appellant separately for conspiracy because he had separate objectives in
committing the assault GBI and the conspiracy to do so. Vargas
is inapposite. The Vargas defendant was punished both for a murder and a conspiracy to
commit murder and other offenses. (
conspired to commit numerous uncharged murders, as well as the offenses of
which Vargas was convicted. (Id.
at p. 571.) Further, the
additional gang enhancements (id. at
pp. 517-518), unlike appellant, who received gang enhancements for both assault
GBI and conspiracy. Contrary to
conspiracy to commit one crime, assault GBI, upon one victim. There is no evidence that he had separate
objectives in committing the conspiracy and the assault GBI. Section 654 thus precludes the imposition of
punishment for both the conspiracy and the assault GBI. (See People
v. Alford (2010) 180 Cal.App.4th 1463.)
DISPOSITION
We
modify the judgment to stay execution of sentence for conspiracy (§ 182,
subd. (a)(1)), pursuant to section 654.
The trial court is directed to amend the abstract of judgment and
forward a copy to the Department of
Corrections and Rehabilitation. In
all other respects, the judgment is affirmed.
NOT
TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT,
P. J.
YEGAN, J.
David
M. Hirsch, Judge
Superior
Court County of Ventura
______________________________
Lori
Kantor, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, , Deputy Attorney General, for
Plaintiff and Respondent.
for assault GBI, with a consecutive 2-year section 186.22, subdivision (b)
enhancement; a concurrent 2-year middle term for conspiracy, with a 3-year
concurrent section 186.22, subdivision (b) enhancement; and concurrent terms of
1-year for each of the three battery offenses.
