P. v. Guerra

Filed 10/5/07 P. v. Guerra 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.

Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Joe Guerra stands convicted of assault with a deadly weapon on a peace officer, exhibiting a deadly weapon at a peace officer to resist arrest, and being under the influence of methamphetamine. The trial court imposed consecutive terms. Guerra contends the trial court should have stayed imposition of punishment on the brandishing offense pursuant to Penal Code section 654.^[1] He also contends the trial court violated his Sixth Amendment rights by imposing consecutive terms and that counsel was ineffective in failing to argue for concurrent terms.

We will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On March 16, 2005, sheriffs officers responded to a family disturbance call at a residence. Upon arrival, a man standing outside the residence notified officers that Guerra, his brother, was inside armed with a bat, had been using narcotics, and had threatened to kill their mother.

Officers Gary Marks and Rodney Parker entered the residence through a back door and announced their presence. In a hallway, they saw an elderly man and woman, Guerras mother and stepfather, pointing at a room. Guerra stepped out of the room with a bat held over his head; he was less than 10 feet from Marks. Guerra stepped back into the room and closed the door.

Marks ordered the elderly couple to get out of the house and he and Parker drew their firearms. Marks repeatedly called to Guerra to come out of the room and drop the bat. Guerra failed to comply.

Guerra stood in the doorway of the room on several occasions, holding the bat above his head in a threatening manner and then closing the door. On one of these occasions, the officers sought to subdue Guerra with pepper spray when he opened the door, but it hit his chest and had no effect. After this incident, Marks and Parker called for reinforcements and barricaded Guerra in the room, waiting for the other officers to arrive. Parker stepped outside to make sure Guerra did not leave through a window.

A few seconds after Parker stepped outside, Guerra opened the door of the room and came out of the room with the bat over his head and a mean look on his face, advanced real fast toward Marks, and refused orders to put down the bat. Marks fired at Guerra, hitting him in the left arm. Guerra fell to the ground and Marks grabbed his legs and pulled him away from the bat.

An analysis of Guerras blood showed that he had toxic levels of methamphetamine and amphetamine.

A jury found Guerra guilty of assault on a peace officer, exhibiting a deadly weapon at a peace officer to resist arrest, and being under the influence of methamphetamine.

DISCUSSION

Guerra raises three separate sentencing issues in his appeal.

I. Section 654

Guerra contends the acts of brandishing or exhibiting the bat while in the doorway and the assault on Marks with the bat were committed pursuant to the same objective and therefore section 654 should apply to stay imposition of punishment for the brandishing offense.

Section 654 bars multiple punishment for a single act or an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335-336.) The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)

There were two distinct offenses committed by Guerra. The first was when he stepped into the doorway of the room, on several occasions, and brandished the bat in order to prevent the officers from entering and placing him under arrest. The second incident, or offense, was when Guerra came out of the room and advanced toward Marks, brandishing the bat, prompting Marks to fire his weapon.

During the actions supporting the brandishing offense, Guerra never crossed the threshold of the room and never advanced toward either officer. As demonstrated by his actions, his sole purpose was to avoid arrest. During the second offense, there was a lapse of time, even if relatively brief, after which Guerra left the room and advanced toward Marks in a very threatening manner. Guerras purpose clearly had changed; he sought to attack Marks and was not merely trying to avoid arrest.

Guerras actions were not one indivisible transaction with a single objective. He had the opportunity to reflect between incidents, and his action in leaving the room and advancing toward Marks created a different risk of harm. (People v. Felix (2001) 92 Cal.App.4th 905, 915.)

Substantial evidence supports the trial courts conclusion that Guerra harbored multiple criminal objectives. Therefore, section 654 does not preclude imposition of punishment for both offenses. (People v. Herrera, supra, 70 Cal.App.4th at p. 1466.)

II. Concurrent Terms

Guerra contends trial counsel was ineffective in failing to argue for concurrent terms. Ineffective assistance of counsel claims generally must be raised by way of a petition for writ of habeas corpus, not on direct appeal. (People v. Diaz (1992) 3 Cal.4th 495, 557-558.) Therefore, we decline to address Guerras ineffective assistance of counsel claim in this appeal.

III. Sixth Amendment

Guerra claims that the imposition of consecutive terms violated his Sixth Amendment rights as set forth in Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]. On the contrary, a determination of whether a term of imprisonment should be served consecutively or concurrently is a sentencing decision made by the judge and does not implicate a defendants Sixth Amendment rights. (People v. Black (2007) 41 Cal.4th 799, 823.)

DISPOSITION

The judgment is affirmed.

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^* Before Harris, Acting P.J., Cornell, J. and Dawson, J.

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