P. v. Garcia

Filed 6/12/08 P. v. Garcia CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed as modified.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.

THE COURT: ^*

After the trial court found appellant, Leonel Garcia, not guilty by reason of insanity, he was committed to Patton State Hospital for 10 years. Garcia contends the maximum term of commitment calculated by the trial court failed to apply Penal Code section 654^[1]to stay punishment for conduct that was incidental to facilitating one objective. We agree and modify the judgment accordingly.

According to the testimony at the preliminary hearing, on the day of the offense, Leonel Garcia entered his doctors office waiving a Bible and a large portrait depicting the Virgin Mary. According to the receptionist, Jane Doe # 1, she tried to escort Garcia out of the office but after he entered the room where she was located, he closed the door, forced her to sit down and blocked her exit. According to the receptionist, while Garcia was in the room, he unbuckled his belt, unzipped his pants, and reached in through the zipper and exposed his genitals. As Garcia exposed himself to the receptionist, he told her that she was going to pay for her sins and orally copulate him. When the receptionist yelled for assistance, the office manager, Jane Doe # 2, entered the room and Garcia forced her to sit down on the couch. After she entered, Garcia closed the door, unzipped his pants again, and told both women that they were going to engage in oral and anal sex with him. When the door to the room opened, the doctor, Garcias psychologist, was able to distract Garcia so that the women were able to escape. According to the office manager, when Garcia entered the office, he had a blank stare, recited Bible verses, and claimed to be Jesus. According to Garcias doctor, Garcia appeared to be in a floridly psychotic and manic state meaning Garcia basically had no control over his actions, that he wouldnt remember what occurred the following day, that he would have zero recollection of what happened.

Garcia pleaded not guilty to an information charging him with two counts of assault with intent to commit a sexual offense against Jane Doe # 1, one count of assault with intent to commit a sexual offense against Jane Doe # 2, attempt forcible oral copulation as to Jane Doe # 1, and one count of false imprisonment by violence alleged separately against each Jane Doe in counts 5 and 6. After the trial court dismissed the allegation of making criminal threats pursuant to section 995, Garcia entered a change of plea and withdrew his not guilty plea, and instead pleaded guilty and not guilty by reason of insanity to all remaining counts in the information. At the time of the guilty plea, the court advised Garcia that the maximum term of commitment was 10 years consisting of a six-year aggravated term for the assault with intent to commit a sexual offense against Jane Doe # 1 in count 1, 16 months each for the assault offenses alleged against Does 1 and 2 in counts 3 and 4, based on one-third of the four-year midterm, plus 8 months each for the false imprisonment offenses alleged in counts 5 and 6, which is comprised of one-third of the two-year midterm. The court determined that section 654 applied to the attempt forcible oral copulation allegation and concluded the maximum term of commitment was 10 years.

At the conclusion of the court trial on the sanity issue, the court found Garcia to be insane at the time of the commission of the offense pursuant to section 1026 and made a finding that Garcia was not guilty by reason of insanity. After receiving the recommendation from the Mental Health Department, Garcia was committed to Patton State Hospital to the maximum term of commitment of 10 years.

On appeal, Garcia contends the trial court incorrectly determined the maximum term of commitment pursuant to section 1026. According to Garcia, the term must be reduced by 16 months because section 654 prohibits a separate punishment for the false imprisonment offenses in this case because they were carried out solely to facilitate the assault on the victims and therefore a separate punishment is prohibited.

As a preliminary matter, respondent urges the court to dismiss the appeal on the basis that Garcia is precluded from raising the section 654 issue on appeal because he failed to obtain a certificate of probable cause. Section 1237.5 provides that, [n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court. In support of their claim, respondent cites People v. Shelton (2006) 37 Cal.4th 759 and People v. Panizzon (1996) 13 Cal.4th 68, for the holding that a defendants challenge to the trial courts sentencing authority is in substance a challenge to the validity of the negotiated plea and therefore the defendant is required to comply with the certificate of probable cause requirement in section 1237.5.

We find respondents claim that Garcia is required to obtain a certificate of probable cause without merit and their citation to Shelton and Panizzon on this issue flawed for two reasons. First, the guilty plea in this case was not the result of a negotiated plea from which Garcia received a benefit, which is vital to the holdings in Shelton and Panizzon, but rather an open plea to the court, setting forth the maximum term of commitment to all six counts that remained in the information.

Second, Garcia is not appealing from a sentencing decision by the trial court that requires a certificate of probable cause. By virtue of Garcias commitment to a state hospital pursuant to section 1026, section 1026.5 states, the court shall state in the commitment order the maximum term of commitment, and the person may not be kept in actual custody longer than the maximum term of commitment, except as provided in this section. For the purposes of this section, maximum term of commitment shall mean the longest term of imprisonment which could have been imposed for the offense or offenses of which the person was convicted, 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 . . . . It is the trial courts calculation of the maximum term of commitment that the trial court made pursuant to section 1026.5 when it ordered Garcia committed to Patton State Hospital that Garcia is challenging on appeal.

After pleading not guilty, the defendant in People v. Wagoner (1979) 89 Cal.App.3d 605 (Wagoner) withdrew his not guilty pleas and entered pleas of not guilty by reason of insanity. After a jury trial on the issue of sanity, the jury found Wagoner sane at the time of the commission of the offense. Wagoner appealed and respondent alleged the appeal was barred because Wagoner failed to file a certificate of probable cause pursuant to section 1237.5. The court rejected respondents contention that Wagoner had not complied with section 1237.5 and held that a defendant need not obtain a certificate of probable cause to appeal from a judgment following a plea of not guilty by reason of insanity. The court emphasized that although the plea is the equivalent to a guilty plea for some purposes, ( 1016) the plea of not guilty by reason of insanity is a separate and distinct plea. (Wagoner, supra, 89 Cal.App.3d at p. 610.) Interpreting section 1237.5 narrowly, the court concluded the plea is outside the scope of the statute and therefore the certificate requirement in section 1237.5 from a judgment of conviction upon a plea of guilty, nolo contendere, or admission of a probation violation does not apply. (Ibid.) As noted by Wagoner, the Legislature could not have intended that section 1237.5 would apply to appeals from convictions following an insanity plea. In view of the narrow interpretation generally given to section 1237.5 and the strong policy favoring disposition of appeals on the merits rather than dismissing them for some technical defect [Citations] appellant is entitled to have his appeal processed by [the] court. (Ibid.) As such, an appeal from a plea of not guilty by reason of insanity does not require a certificate of probable cause.

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 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.] [Citation.] (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.)

As interpreted, section 654 prohibits punishment for two crimes arising from a single indivisible course of conduct where the crimes are merely incidental to, or were the means of accomplishing or facilitating one objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) In People v.Latimer, supra, 5 Cal.4th 1203, the victim was a passenger in a car driven by the defendant when the defendant drove past their intended destination and into an undeveloped area of nearby desert where he assaulted and raped the victim. The defendant then drove farther into the desert and raped the victim a second time. Latimer held that although [i]t could be argued that defendant had two intents: (1) to drive the victim against her will to an isolated area, and (2) to rape her. Cases . . . however, make clear that multiple punishment for both the rapes and the kidnapping is prohibited under the circumstances of this case. Although the kidnapping and the rapes were separate acts, the evidence does not suggest any intent or objective behind the kidnapping other than to facilitate the rapes. Since the kidnapping was for the purpose of committing the sexual offenses and [defendant] has been punished for each of the sexual offenses, section 654 bars execution of sentence on the kidnapping count. [Citations.] (Id. at pp. 1216-1217.)

Similar to the argument in Latimer, respondent in this case contends the trial court could have found Garcia entered the doctors office with separate intents and objectives to have the women pay for their sins by performing sexual crimes, and also to isolate them from the rest of the office employees. However, the evidence introduced at the preliminary hearing does not suggest that Garcia had a separate intent or objective when he closed the door to the office other than to facilitate the assaults on the victims. Garcias words and actions all indicate the false imprisonment offenses were carried out solely to further Garcias intent and objective to facilitate the assault on both women and respondent does not point to any facts in this case that would indicate otherwise. As such, a separate punishment for the false imprisonment offenses is prohibited and applies to a maximum term of commitment made pursuant to section 1026.5. (People v. Hernandez (2005) 134 Cal.App.4th 1232, 1238.)

The judgment is ordered modified to stay execution of the sentence on counts 5 and 6 pursuant to section 654. The clerk of the superior court is ordered to prepare and forward to Patton State Hospital an amended order of commitment modifying the maximum term of commitment consistent with this courts opinion. As modified, the judgment is affirmed.

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^* Before Sills, P. J., Rylaarsdam, J., and Ikola, J.

^[1] All further references are to the Penal Code unless otherwise indicated.