P. v. Esparza
Filed 1/2/13 P.
v. Esparza CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL
ESPARZA,
Defendant and Appellant.
B236857
(Los Angeles County
Super. Ct. No.
GA081361)
APPEAL
from a judgment of the Superior Court of
County. Michael Villalobos, Judge. Affirmed.
James
R. Bostwick, Jr., 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, Steven E. Mercer and
Alene M. Games, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
Michael
Esparza, also known as Miguel Ruiz, appeals from the judgment entered upon his
convictions by jury of two counts of making a
3 & 4),
title="">[1] and one count each of
disobeying a court order (§ 166, subd. (a)(4), count 5) and misdemeanor
vandalism (§ 594, subd. (a), count 6).
appellant to state prison for the upper term of three years on count 3 and to
concurrent sentences on counts 4, 5 and 6.
Appellant contends that his concurrent sentence on count 4 should have
been stayed pursuant to section 654.
We affirm.
FACTUAL BACKGROUND
The broken car window
In
October 2010, appellant and Priscilla Fuentes (Priscilla) were dating.
her sister, Serena Fuentes (Serena), in Monterey Park. Priscilla and appellant had a history of
domestic violence.
In
the morning of October 3, 2010, Priscilla and
her children left appellant’s home and went to Serena’s residence to
babysit. Appellant telephoned Priscilla
and asked where she went and why. He was
upset because Dodgers tickets he had purchased for $600 were missing, and he
believed Priscilla had taken them and was going to the game with another
“guy.†Priscilla had in fact taken the
tickets from appellant’s drawer and given them to Serena, who was using them to
go to the game.
Appellant drove
to Serena’s house and stopped in the middle of the street as Serena was
leaving. He yelled for Priscilla to come
out. He asked her and Serena about the
missing tickets. Both denied knowing
about them. Appellant drove away,
returned shortly thereafter and yelled at Priscilla to get into his car. She told responding officers that while she
was standing at the front door, she heard appellant “rack[] a round into a gunâ€
as he got out of the car. He pointed the
gun at her and said, “Walk to my car. I
want to talk to you.†Priscilla closed
the door. From a window, she saw
appellant walk to Serena’s car parked in the driveway, heard a shot, and saw
appellant drive away. Priscilla went
outside and saw that the rear window of the car had been shattered.
Priscilla
prepared a handwritten statement regarding the incident that was substantially
the same as she had reported to the officers; that appellant was upset with
her, threatened her with a gun and came outside and shot out her sister’s car’s
back window.
The threatening text messages
Monterey Park
Police Officers Arthur Rousseau, Gilbert Alvarez, and Hector Hernandez
responded to a shots fired call at Serena’s residence. When they arrived, Priscilla was crying and
pacing in front of the house. As
Priscilla was speaking with the officers, she received text messages which she
said were from appellant. She showed
them to the officers. Among them was one
message that said: “Answer me. I just want to talk to you. If not, watch what’s going to happen to all
the cars. I know where your sister works
and your neighbors.†Three minutes later,
another text message stated, “Tell your boyfriend, Luis, to come out. I don’t give a shit if he has a gun. Call me, or I’m going to blast all the house
(sic) right there. I promise.â€
Appellant’s version
Appellant
testified in his own behalf. He admitted
that he was angry at Priscilla and Serena for taking his Dodger tickets, went
to Serena’s house and broke the rear window of her car. He denied, however, shooting at the car
window and having a gun at the scene, claiming instead that he broke the window
with a brick.
Appellant also
admitted sending the threatening text messages to Priscilla because he was angry
and knew she would not be afraid because she knew that he said “dumb†things
when he was mad.
DISCUSSION
I. Background
Counts 3
and 4 for making criminal threats related to the two threatening text messages
that stated: “Answer me. I just want to talk to you. If not, watch what’s going to happen to all
the cars. I know where your sister works
and your neighbors†and, “Tell your boyfriend, Luis, to come out. I don’t give a shit if he has a gun. Call me, or I’m going to blast all the house
(sic) right there. I promise.â€
These messages were sent within three minutes of each other. The trial court imposed a three-year prison
term on count 3 and a concurrent three-year term on count 4.
Appellant’s sole
contention on this appeal is that the criminal threat conviction in count 4
should have been stayed pursuant to section 654. He argues that both criminal threats were
part of the same course of conduct and had the same objective. This contention is without merit.
III. Standard
of review
By failing to
stay sentence on the second criminal threat conviction, the trial court
impliedly found that appellant had a separate intent and objective for each
offense which were not a part of an indivisible transaction. Whether multiple convictions are part of an
indivisible transaction is primarily a question of fact. (People
v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We review such a finding under the
substantial evidence test (see People v.
Osband (1996) 13 Cal.4th 622, 730–731; People
v. Blake (1998) 68 Cal.App.4th 509, 512); we consider the evidence in the
light most favorable to respondent and presume the existence of every fact the
trier could reasonably deduce from the evidence. (People
v. Holly (1976) 62 Cal.App.3d 797, 803.)
We must determine whether the violations were a means toward the
objective of commission of the other.
(See People v. Beamon (1973) 8
Cal.3d 625, 639.)
IV. Section 654
Stay
Section 654 provides in
part: “An 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.â€
(§ 654, subd. (a), italics added.)
“[S]ection 654 applies not only where there was
but one act in the ordinary sense, but also where there was a course of conduct
which violated more than one statute but nevertheless constituted an
indivisible transaction.â€
name="_ftnref6" title="">[6] (People v. Perez (1979) 23 Cal.3d 545, 551.)
“If all the offenses were
incident to one objective, the defendant may be punished for any one of such
offenses but not for more than one.†(People
v. Perez, supra, 23 Cal.3d at p. 551.) If, on the other hand, “the [defendant]
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, supra, 8 Cal.3d at p. 639.)
We conclude that
there is substantial evidence to support the trial court’s imposition of a
concurrent sentence on count 4.
Appellant sent a threatening text message to Priscilla. Three minutes elapsed before he sent a second
threatening text message. Consequently,
the two criminal threat charges here resulted from two separate acts, not one
act that violated separate statutes. (§
654.) They were not incidental to each
other, but completely independent. Each
of the messages constituted a separate crime.
Each threat was calculated, required separate volitional acts to compose
a text message and send it to Priscilla and were separated by a sufficient
amount of time to allow reflection.
Neither act was uncontrollable.
“‘[D]efendant should . . . not be rewarded where,
instead of taking advantage of an opportunity to walk away from the victim, he
voluntarily resumed his . . . assaultive behavior.’†(See People
v. Trotter (1992) 7 Cal.App.4th
363, 368 (Trotter) [section 654
inapplicable to multiple shots fired within a span of just over a minute by
defendant at pursuing officer].)
Further, the
purpose behind section 654 is “to insure that a defendant’s punishment will be
commensurate with his culpability.
[Citation.]†(
552.) A person making one criminal
threat in a fit of anger is less culpable than a person making multiple
threats, particularly, as here, where the threats increased in
seriousness. Appellant’s first text
message was general in nature, stating, “watch what’s going to happen to all
the cars. I know where your sister works
and your neighbors.†The second message
implied that appellant was going to use a gun to shoot people, as he stated,
“I’m going to blast all the house (sic)
right there.†Hence, the second message
escalated the threat and would likely cause the victim greater fear. Multiple threats suggest a firmness of
purpose and a resolve to follow through that a single threat might not.
Even under the long recognized intent
and objective test, each threatening text evinced a separate intent to instill
fear in Priscilla, just as each shot in Trotter
and each new and separate sexual penetration in People v. Harrison (1989) 48 Cal.3d 321, 337–338 evinced a new and
separate intent and objective. The
subjects of the two messages are not the same.
The first text message threatened to damage cars and implicitly to harm
Priscilla, Serena and neighbors. The
second message contains an implicit threat to Priscilla’s boyfriend Luis, not
even referred to in the first message, and a threat to shoot at Serena’s house
and others in the area.
Accordingly, the
trial court here did not err in punishing appellant separately for each of his
threatening text messages.
DISPOSITION
The judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
P. J.
BOREN
_______________________________,
J.
CHAVEZ
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise indicated.
name="_ftn2" title="">[2] Count 1 in the original information was not included in the
amended information. Appellant was found
not guilty of assault with a semiautomatic firearm (§ 245, subd. (b)) and
the lesser included offense of simple assault (§ 240) in count 2 and of
attempted kidnapping in count 7 (§§ 664, 207, subd. (a)).
