P. v.
Filed 1/23/13 P. v. Chu
CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
TONY CHU,
Defendant and
Appellant.
F064187
(Fresno
Super. Ct. No. F11905427)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court
of
County. Jon Kapetan,
Judge.
Charles M.
Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N.
Farris, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
PROCEDURAL AND FACTUAL HISTORY
On September 20, 2011, the Fresno County
District Attorney filed a felony complaint charging defendant Tony Chu with
of a knife (§ 12022, subd. (b)(1)) (Count 1), and mayhem (§ 203) by
behavior that “split the ear of … a human being†(Count 2). On September
18, 2011, defendant pled not guilty to both counts and denied the
enhancement allegation. On September 28, 2011, defendant pled
not guilty by reason of insanity, and the trial court suspended
psychologists to evaluate him. In his
report, one of the psychologists, Robert Taylor, included a summary of the
incident as reported to a Fresno
police officer: the victim told Officer
Ressler that the defendant approached the victim’s work station, produced a
butcher knife, and placed it to the victim’s throat. The victim ran outside. Defendant chased him. Defendant “then … bit the ear of the victim,
causing the injury ….â€
On December 19, 2011, the trial court
received, considered, “incorporate[d] into the file and [made] part of the
record,†the reports of both psychologists.
The trial court found defendant not guilty by reason of insanity. Defendant then withdrew his not guilty plea,
pled guilty to count one with the enhancement, and pled guilty to count two.
Counsel for
both parties stipulated that the factual basis for the plea was as it was
listed on the plea form: “THE POLICE REPORT SAYS THAT ON 9-18-11, IN THIS COUNTY, I USED A KNIFE AND BITING
TO SPLIT MY COUSIN’S EAR AND TRY TO KILL HIM.†When discussing defendant’s maximum period of
commitment, the trial court stated it may be 11 years 4 months. Defendant’s counsel took the position that
the maximum period of commitment would depend on whether section 654 applied;
the trial court acknowledged section 654 might apply.
On January 5, 2012, the trial court
followed the recommendation of the Community Program Director of the Central
California Conditional Release Program (CONREP) and committed defendant to
Atascadero State Hospital (ASH). The
following then occurred:
“MR.
GUNDERSON [prosecutor]: Your Honor, we
do have to set the maximum term.
“THE
COURT: We need time credits as well as
maximum period of confinement on this.
[¶] … [¶]
“MR.
LAMBE [defense counsel]: Yes. Three matters, Your Honor. I’ve provided attorney fee form to the
Court. I assume the Court will find that
he is [sic] not have the ability to pay.
“THE
COURT: That’s correct.
“MR.
LAMBE: Secondly, I come up with 110 days
of actual time credits.
“THE
COURT: Okay.
“MR.
LAMBE: Thirdly, I have the maximum time
in custody as ten years applying PC 654 to Count Two.
“THE
COURT: People?
“MR.
GUNDERSON: I’m not so sure it is [
necessarily has anything to do with attempted murder.
“MR.
LAMBE: A single criminal objective,
single transaction, single attack.
“THE
COURT: The maximum would be, if it were
not 654?
“MR.
GUNDERSON: 11,4.
“THE
COURT: All right. I’ll find 11 years 4 months is the maximum
period of commitment. And the time credits are 110 days you said?
“MR.
LAMBE: Yes.
“THE
COURT: 110 days. Anything further?
“MR.
LAMBE: We observely [
maximum time.
“THE
COURT: All right. I understand.
“MR. LAMBE: Thank you, Your Honor.
“THE
COURT: Objection is noted for the
record.â€
The
commitment of 11 years 4 months consisted of nine years for attempted murder
(count 1), one year for personal use of a knife (special allegation), and one
year, four months, for mayhem (count 2).
Defendant asserts the trial court was limited in its “654 determinationâ€
to the factual basis that was stated for the guilty plea, the factual basis
established the two substantive offenses were committed with a single intent
and objective, and the trial court therefore erred when, in its determination
of his maximum term, it ran the two terms consecutively. He cites to People v. Bui (2011) 192 Cal.App.4th 1002 as support for his
position.
Respondent
points to three sources of information as justifying the trial court’s choice
to run the terms consecutively: the
factual basis for the plea, the fact the knife use was alleged and admitted as
to the attempted murder count only (and not the mayhem count), and the incident
description listed in Dr. Taylor’s evaluation.
Respondent argues that consideration of all three sources of information
leads to the reasonable inference “that the attempted murder and the mayhem
were separate acts – i.e., that [defendant] used a knife to attempt to murder
his cousin, and separately bit his cousin in the ear, with the intent to
disfigure him, which provided the basis for the mayhem charge.â€
Section
1026.5, subdivision (a)(1) requires that, “[i]n the case of any person
committed to a state hospital …, the court shall state in the commitment order
the maximum term of commitment …. ‘[M]aximum term
of commitment’ shall mean the longest term of imprisonment which could have
been imposed for the offense …, including the upper term of the base offense
and any additional terms for enhancements and consecutive sentences which could
have been imposed less any applicable credits .…†Section 654, subdivision (a), is applicable
to the calculation of the maximum term of commitment. (People
v. Hernandez (2005) 134 Cal.App.4th 1232, 1238.) That section applies to “[a]n act or omission
that is punishable in different ways by different provisions of the law†and
prohibits punishment for two crimes arising from a single, indivisible course
of conduct. (§ 654, subd. (a),
1208.)
“The
initial inquiry in any section 654 application is to ascertain the defendant’s
objective and intent. If he entertained
multiple criminal objectives which were independent of and not merely
incidental to each other, he may be punished for independent violations
committed in pursuit of each objective even though the violations shared common
acts or were parts of an otherwise indivisible course of conduct.†(People
v. Beamon (1973) 8 Cal.3d 625, 639.)
Additionally, where a defendant has similar but consecutive objectives,
multiple punishments are permitted. (
1212.) “The question whether section 654 is
factually applicable to a given series of offenses is for the trial court, and
the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld
on appeal if there is any substantial evidence to support them. [Citations.]
We must ‘view the evidence in a light most favorable to the respondent
and presume in support of the [sentencing] order the existence of every fact
the trier could reasonably deduce from the evidence. [Citation.]’
[Citation.]†(
1308, 1312.)
Contrary to
defendant’s position, a section 654 determination is not necessarily limited by
the agreed factual basis for the plea; that is not the purpose of the factual
basis. A factual basis is required
before a trial court accepts a guilty or no contest plea pursuant to a plea
agreement. (People v. French (2008) 43 Cal.
4th 36, 50.)
title="">[2] “ ‘The purpose of the requirement is to
protect against the situation where the defendant, although he realizes what he
has done, is not sufficiently skilled in law to recognize that his acts do not
constitute the offense with which he is charged. [Citation.]
Inquiry into the factual basis for the plea ensures that the defendant
actually committed a crime at least as serious as the one to which he is
willing to plead.’ [Citation.]†(Ibid.)
When making
a section 654 determination, on the other hand, a trial court looks beyond the
limits of the factual basis. A section
654 analysis, in the “vast majority of cases,†is made by the trial court “on
the basis of the evidence received during trial.†(People
v. Ross (1988) 201 Cal.App.3d 1232, 1240.)
In People v. Ross, a post plea
section 654 evidentiary hearing was held on the issue of whether the crimes
were separate and distinct. In finding
no error in the holding of such a hearing, the court of appeal stated, “The
right to enter a plea of guilty or to waive trial by jury cannot be deemed to
include the right to deprive the court of facts that must be known in order to
make a correct sentencing decision; nor can a plea bargain limit that inherent
judicial prerogative.†(
When a defendant enters a not
guilty by reason of insanity plea, the question of whether he was sane or
insane at the time of the offense is determined by trial. (§1026subd. (a).) In this case, during the court trial, Dr.
Taylor’s evaluation was “incorporate[d] into the file and [made] part of the
record.†In other words, it was received
into evidence. As such, its contents
were available to the trial court for use in a section 654 analysis.
The
evidence before the trial court was that defendant approached the victim and
put a butcher knife to the victim’s throat.
When the victim fled, defendant chased him. Defendant then bit the victim in the ear,
with the intent to disfigure him.
Defendant’s plea admitted personal use of a knife in the commission of
the attempted murder, but not in the commission of mayhem.
In
1002, the case upon which defendant relies, the court held the defendant could
not be sentenced to consecutive terms for attempted murder and mayhem when the
two crimes addressed the same act of shooting the victim. Bui fired at least three rounds into the
victim’s body. (Id. at p. 1006.) The
trial court characterized the two counts as describing “basically[] the same
occasion and same set of operative facts.â€
(Id. at p. 1013.) The court of appeal agreed. (Id.
at p. 1015.)
This case,
however, is factually different. It does
not involve one attack on the victim for which defendant was convicted of
different provisions of the law. Viewing
the evidence in “a light most favorable to the respondent†(
Cal.App.4th at p. 1312), it is reasonable to infer defendant used a knife
with the intent to kill the victim and, after the victim fled, chased and
caught up to him, biting his ear with the intent to disfigure him. Implicit in the trial court’s sentencing
decision was a determination that defendant harbored separate intents and
objectives with respect to attempted murder and mayhem. The trial court did not err in imposing a
maximum commitment of 11 years 4 months.
DISPOSITION
The judgment is affirmed.
Detjen, J.
Penal Code unless otherwise stated.
