P. v. Bustillos
Filed 7/10/12 P. v. Bustillos CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
LENO BUSTILLOS,
Defendant and Appellant.
B235542
(Los Angeles
County
Super. Ct.
No. KA092764)
APPEAL from a judgment of the Superior
Court of
County.
Geanene M. Yriarte, Judge.
Affirmed.
Lynette
Gladd Moore, 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, Assistant Attorney General, Blythe J. Leszkay and John Yang,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
Appellant Leno Bustillos was
convicted of first degree robbery and
making criminal threats. The trial court sentenced him to a total of
81 years to life. Appellant contends
that the trial court should have stayed the consecutive sentence for count 2
and granted appellant’s Romero
We affirm.
BACKGROUND
Irving Rodriguez (Irving) lived
with his father in a trailer park in El
Monte.
Around noon on December 7, 2010,
appellant knocked on Irving’s
trailer and asked if he knew where a man named Marco was. Marco was a former tenant of the trailer
park. Irving had
seen appellant with Marco around the trailer park before. Irving never
had any problems or prior relationship with appellant.
Irving told
appellant he did not know where Marco was.
Appellant then took out a five-inch folding knife and walked into Irving’s
trailer. Irving
stepped back into the trailer as appellant approached. Once inside, appellant continued to point the
knife at Irving and
told him “not to try to do anything stupid or else [he would] stab [him] in
[his] chest.†He also told him that he
had two friends outside who would burn down Irving’s
trailer should he try to do anything stupid.
Appellant stated that he was on the run from the police, “so not to call
them or anything.†Irving
testified that he was scared of getting stabbed when appellant threatened him.
Appellant put his knife away, asked where Irving’s
important equipment was, and began searching the trailer. Irving was
able to convince appellant not to take his laptop because he needed it for
school. Nonetheless, Irving saw
appellant take some money by his bed, his father’s dental equipment, some boxes
containing credit cards and ID’s, and his father’s pocket knife. Appellant stashed the items in Irving’s
backpack and a laundry basket. He then
asked Irving if he
had any tools. Irving told
him the tools were outside. Appellant
put on the backpack, took his knife back out, and walked outside with Irving.
When appellant approached the storage door for the tools,
Irving jumped
on his back and began to squeeze him.
Appellant had previously been holding his knife in his left hand. Irving was
pretty sure that the knife would have stabbed appellant in the neck because of
the way that Irving had
been squeezing him. After wrestling for
about 10 seconds, appellant threw Irving off
his back and said, “You fucked up.†Irving then
ran straight to the house of the trailer park manager.
Carlos Salas (Carlos), the manager’s son, testified that
when Irving
arrived, he stated, “I just got robbed.
I stabbed him and he left. . . .
Call the cops.†While Irving told
the manager and Carlos what had happened, a white Ford Explorer sped out of the
park’s other entrance. Appellant was in
the car. As he drove by, he made eye
contact with Irving and
gestured with his hand at him as if simulating the cocking motion of a
gun. Carlos testified that appellant
appeared to be smiling. Carlos also
noted that appellant made an audible “Bam, bam†noise while gesturing. Carlos knew the person in the car was
appellant because he recognized his voice and the way he looked. Irving
testified that appellant looked “furious.â€
He was scared when he saw appellant because he thought he was going to
come right back.
When the police arrived, Irving
returned to his trailer and determined that the backpack appellant had been
wearing was gone. The next day,
detectives located the white Ford Explorer in the parking lot of a hospital 10
minutes away. The car was registered to
appellant’s wife, Susan Bustillos.
Detectives located a backpack resembling Irving’s in
the passenger seat of the car. They also
found a box containing computer equipment.
Ramiro Rodriguez, Irving’s
father, identified the box, as well as two watches that had been in the car, as
his property. Detectives arrested
appellant when he was discharged from the hospital later that evening.
The jury convicted appellant of
Code, § 211;
name="_ftnref2" title="">[2] count 1) and the crime of
making criminal threats (§ 422; count 2).
As to each count, the jury found the deadly and dangerous weapon
allegation to be true within the meaning of section 12022, subdivision (b)(1). The trial court denied appellant’s
a total of 81 years to life. As to count
1, appellant was sentenced to 41 years:
a base sentence of 25 years to life plus five-year enhancements for each
of appellant’s three priors pursuant to section 667, subdivision (a)(1), plus a
one-year enhancement pursuant to section 12022, subdivision (b)(1). As to count 2, appellant was sentenced to 40
years: a base of 25 years to life plus
five-year enhancements for each of appellant’s three priors (§ 667, subd.
(a)(1)). The trial court struck the
punishment for the enhancement under section 12022, subdivision (b)(1) on count
2 in the interest of justice.
A. Consecutive punishment for criminal threat
conviction
Appellant argues that when he threatened to burn Irving’s
home or stab him and when he told Irving not to call the police, he was
satisfying the force or fear element of the robbery. Appellant thus asserts that the threats were
part of the same course of conduct as the robbery and that it was error under
section 654 to impose a consecutive sentence for count 2. In response to appellant’s section 654
argument, the Attorney General contends that appellant’s threats to Irving were
in furtherance of an objective
trial court’s consecutive sentencing for count 2 was proper. We do not agree with the rationale of
respondent’s argument.
A defendant may only receive punishment for the objective
or objectives that his offenses sought to further. (People
v. Britt (2004) 32 Cal.4th 944, 952).
If one offense is merely “‘“a means toward the objective of the
commission of the other,â€â€™â€ a defendant may not receive punishment for
both. (People v. Wynn (2010) 184 Cal.App.4th 1210, 1215). Accordingly, we will not reverse a trial
court under section 654 unless we find that the prosecution failed to present
substantial evidence that appellant’s offenses were incident to more than one
objective. (Id. at pp. 1214-1215). Here,
appellant’s only evident reason for threatening Irving during the robbery was
so he would be able to carry out his theft.
The threats not only worked to instill fear in Irving and to prevent him
from stopping appellant—it also served to prevent the police from being able to
enter the scene and halt appellant’s criminal behavior. Other than working to ensure a successful
robbery, the evidence does not show any other intention appellant could have
had in ordering Irving to not call the police or in threatening to harm him and
his home should he do anything “stupid.â€
Thus, we conclude that in this respect, appellant only harbored one
objective. Nevertheless, we hold that
other substantial evidence of a different threat did exist to justify
consecutive punishment for appellant’s criminal threat conviction.
At trial, the prosecutor argued to the jury in
drove away, gesturing his hand like a shooting gun, he made a criminal
threat. Appellant contends that such
action does not constitute a criminal threat because neither Irving nor Carlos
testified that appellant made any sound when he gestured. For a gesture to amount to a criminal threat
under section 422, a verbal sound must accompany it. (People
v. Franz (2001) 88 Cal.App.4th 1426, 1439 [holding that defendant’s “shushâ€
or “sh†sound was enough to constitute a verbal statement, thus rendering his
gesture a criminal threat].) However,
the record clearly reflects Carlos’s testimony at trial, where he states that
appellant said “Bam, bam†as he gestured and drove away. In fact, Carlos testified that the sound of
appellant’s voice was how he was able to recognize appellant in the first
place. Thus, appellant’s contention that
his gesture does not violate section 422 is incorrect.
The only question then is whether appellant’s last
criminal threat was incident to the same objective as the robbery. We find that it was not. Appellant made his separate objective clear
as he drove past Irving, smiling and shooting his hand like a gun directly at
him. At that point, appellant had
already successfully left the premises with Irving’s belongings. The robbery was complete. Appellant’s gesture was no longer a means of
ensuring his ability to take Irving’s belongings; it rather evinced his sole
intent to prevent police involvement by threatening harm to Irving. We thus conclude that the prosecution did
present substantial evidence to support the finding that appellant’s gesture
had a separate objective of preventing a report to the police. Accordingly, we affirm the trial court’s
consecutive sentencing for appellant’s criminal threat and robbery convictions.
B. Appellant’s Romero Motion
Appellant contends that
the nature and remoteness of his prior strikes render him outside the spirit of
the Three Strikes law. Appellant thus
argues that the trial court abused its discretion when it refused to dismiss
all but one of appellant’s prior strikes.
We disagree.
The purpose of the Three
Strikes law is to punish criminals who have a tendency to commit offenses that
pose a threat to public safety. (
1066, 1080-1081). In reviewing a trial
court’s decision to refuse to strike a defendant’s prior convictions, we will
not reverse unless appellant clearly shows that the trial court’s sentencing
was so irrational or arbitrary that no
reasonable person could agree with it (People
v. Carmony (2004) 33 Cal.4th 367, 378).
For such a decision to have been reasonably just, however, the trial
court must have taken into account the “nature and circumstances of the present
crimes; the defendant’s prior convictions; his background, character, and
prospects.†(People v. McGlothin (1998) 67 Cal.App.4th 468, 474-475). In People
v. McGlothin, at page 476, for example, the court abused its discretion
when it struck one of defendant’s prior convictions on the sole basis that it
personally believed “‘the level of crime in this case did not warrant a
25-year-to-life sentence.’†On the other
hand, in People v. Carmony, the trial
court weighed important factors in refusing to strike the defendant’s prior
convictions; although the defendant’s current offense was very technical and
nonviolent, the court recognized that the defendant nonetheless had substance
abuse problems, an extensive criminal history, and poor future prospects. Because such an analysis was neither arbitrary
nor irrational, our Supreme Court held that the trial court’s ruling did not
constitute an abuse of discretion. (33
Cal.4th at p. at 379.)
Lastly, we note that the
passage of time between a defendant’s prior felony convictions and his present
offense need not have been a consideration in the trial court’s analysis. (People
v. Williams (1998) 17 Cal.4th 148, 163).
For example, in Williams, the
court held that the fact that 13 years had passed between defendant’s prior
felony conviction and his present felony was insignificant. The defendant “did not refrain from criminal
activity during that span of time, and he did not add maturity to age.†(Ibid.)
Here, the trial court outlined its specific
considerations and reasoning in denying appellant’s Romero motion. It reviewed
and discussed the particular facts of appellant’s extensive criminal history,
including appellant’s past weapon usage.
It noted that appellant had already been subject to the Three Strikes
law, yet had evaded a life sentence. It
also considered appellant’s background, character, and prospects as it read
letters from appellant and his family members.
The trial court even praised appellant when it discussed the future of
his Soldiers for God program.
Nonetheless, the court ultimately concluded that the dispositive factor
in the case was the fact that appellant’s pattern and history of criminal
activity had not ceased. As a result,
the trial court held that appellant was not an exception to the Three Strikes
law.
Appellant has not shown
that the factors the trial court looked at were improper; he simply disagrees
with the conclusion of the court’s analysis.
Accordingly, appellant has failed to show that the trial court made its
decision in an irrational or arbitrary manner.
We thus reject appellant’s contention that the trial court’s analysis
constituted an abuse of discretion.
The judgment is affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
DOI TODD,
J.
CHAVEZ, J.
name="_ftn1" title="">[1]
13 Cal.4th 497.
name="_ftn2" title="">[2] All
further references are to the Penal Code unless otherwise noted.
