P. v. Huerta















Filed 2/25/13 P. v. Huerta CA6













>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




>

THE PEOPLE, Plaintiff and Respondent, v. CAROLYN HUERTA, Defendant and Appellant.

H037152 (Monterey County Super. Ct. No. SS0806070)

Defendant
Carolyn Huerta appeals from a judgment of criminal
conviction, contending that (1) sentence on two of the three charges
against her should have been stayed under Penal Code section 654, subdivision
(a) (§ 654(a)); (2) she is entitled to credit for presentence confinement at
the rate prescribed by the October 2011 amendments to Penal Code section 4019;
and (3) one of the fines against her should be stricken as duplicative of a
fine previously imposed. Respondent
concedes the first point as to one charge, but not the other. Defendant in turn concedes that her second
claim of error is foreclosed by the California Supreme Court’s decision in >People v. Brown (2012) 54 Cal.4th
314. As to the remaining points of
contention, we conclude that the sentence on the remaining charge should also
have been stayed under section 654(a), and that the judgment must be corrected
in three respects with respect to the fines imposed. We will direct appropriate modifications of
the judgment and affirm the judgment as modified.

>Background

A complaint
filed on January 8, 2008,
charged defendant with assault by force likely to cause great bodily href="http://www.sandiegohealthdirectory.com/">injury (Pen. Code, § 245,
subd. (a)(1)), grand theft from the person (Pen. Code, § 487, subd. (c)), and
battery (Pen. Code, § 242). It was
further alleged that defendant committed the charged crimes “for the benefit
of, at the direction of, or in association with NORTENO CRIMINAL STREET GANG,
with the specific intent to promote, further, or assist in any criminal conduct
by gang members, in violation of Penal Code Section 186.22(b)(1).” Also charged in these counts, and two others,
was a codefendant, Joel Hernandez.

At the
preliminary hearing on April 28, 2008, a police officer testified that the
person identified as Victim 1 (“Jane Doe” in the pleadings; hereafter Doe) told
her that while standing outside Jaime’s Bar in Salinas on the evening of
October 15, 2007, she was approached by defendant and another woman, who asked
where she was from. Doe responded that
she was from the Los Angeles
area. The women told her to leave the
area. When she failed to do so, they
“began to hit her . . . to the point where she fell to the ground,”
whereupon they “began kicking her.” Doe
believed she lost consciousness at one point.
She described defendant as her main attacker. She was unable to identify the other
assailant or describe her beyond her sex and the color of her clothing. She also told the officer that the two women
took her cane, which was “blue with some sort of stars and moons on it.” Asked whether Doe “need[ed] [the] cane, or
was it just an ornament,” the officer testified, “I believe that she used it to
assist her in walking. She had some
problems walking.” However she could not
recall whether Doe walked with a limp and did not otherwise disclose the basis
for her belief that she needed the cane for mobility.

A male
bystander, identified at the preliminary hearing only as Victim 2, also
identified defendant as one of the assailants.
He told an officer that he witnessed two females punching and kicking
Doe “[a]bout her body and head.” When he
attempted to intervene, he was approached by codefendant Hernandez, who
“grabbed him by the throat and tried to keep him from intervening or assisting
Victim 1.” Another officer, who
described Jaime’s Bar as a “known Norteño hangout,” testified that after the
incident he entered the bar, where he found Hernandez sitting at a table with
the stolen cane leaning against the wall about six inches away.

Another
officer, who had researched the potential gang
affiliations of the two defendants, opined that defendant “is an active
participant in the Norteño criminal street gang.” He also recounted a recorded telephone
conversation between defendant and one Art Marquez, a known Norteño gang member
with whom the officer believed defendant had borne children. In the conversation defendant told Marquez
that “she was in a fight with a female outside of Jaime’s Bar.” Some of defendant’s companions had asked the
victim where she was from; she had replied either “Florencia sur” or
“Sureño.” Defendant then told the victim
“that she needed to get the fuck on and that this wasn’t her area.” The victim then asked defendant for
“permission to use the restroom in the bar,” but defendant refused; as she
explained to Marquez, the bar was “their area.”
Defendant said that after entering the bar for a short time, she had
returned to find the victim “still outside and . . . being confronted
by [defendant’s] friends.” The friends
pointed out to defendant that the victim was a Sureña, which the victim said
she had already told defendant. At that,
defendant stated, “ ‘I had to drop her.’ ” She also took the victim’s cane. Although the officer did not so testify at
the hearing, the prosecutor’s trial brief added the detail, as reported by
defendant to Marquez, that after “ ‘kicking’ ” the victim’s
“ ‘ass back to the bus depot,’ ” she “noticed the victim’s cane and
took it and went back inside the bar.”

The officer
opined that the assault described in the case was gang-related. He confirmed that Jaime’s Bar was “frequented
by Norteño gang members.” He also noted
that the assault was preceded by “a direct challenge issue[d] to the victim
asking her where she’s from.” Such a
challenge, he testified, “is most often followed by some sort of act of
violence.”

The court
held defendant to answer on the three charges originally pled against her and
also on a fourth charge of participation in a href="http://www.mcmillanlaw.com/">criminal street gang (Pen. Code,
§ 186.22, subd. (a)).href="#_ftn1"
name="_ftnref1" title="">[1] On May
6, 2008, an information was filed charging defendant with assault
by means of force likely to produce great bodily injury (former Pen. Code, §
245, subd. (a)(1); see now § 245, subd. (a)(4)), grand theft from the person
(Pen. Code, § 487, subd. (c)); felony battery (Pen. Code, § 242); and felonious
participation in a criminal street gang (Pen. Code, § 186.22).

The matter
was scheduled to be tried on March 16, 2009.
On that date defendant entered pleas of nolo contendere to the charges
of assault with injurious force, grand theft, and gang participation, on the
understanding that she would be sentenced to felony probation. All remaining counts and enhancements were
ultimately dismissed. As contemplated by
the conditions on which the plea was made, the court suspended imposition of
sentence and placed defendant on probation.
The order placing her probation included directives that she “[p]ay a
restitution fine of $600.00 to the State Restitution Fund” under Penal Code
section 1202.4, subdivision (b), and that she was subject to “[a]n additional
restitution fine in the amount of $600.00. . ., suspended, and not to
be paid unless and until probation is revoked and not reinstated. (PC § 1202.44).”

On March
17, 2011, the district attorney filed a petition to revoke defendant’s
probation, alleging that she had violated the prohibition against possessing
gang paraphernalia. As recounted in the
probation report, the violation consisted of having on her cell phone “several
gang pictures, photographs, letters and text messages of and to other Norteño
criminal street gang members.” The court
found that defendant had violated probation.
The hearing was combined with a preliminary hearing in a companion case
charging defendant with felony obstruction of a police officer. This charge arose from an incident in which
defendant falsely answered questions by gang officers concerning her means of
transport to the probation department, where she had come to meet with her
probation officer. She ultimately
entered a plea of nolo contendere to that charge on the understanding that it
would be reduced to a misdemeanor at sentencing. She also admitted the probation violation.

On July 13,
2011, the trial court sentenced defendant to 3 years on the charge of assault;
2 years, to be served concurrently, on the charge of grand theft; and 8 months,
to be served consecutively, on the charge of felonious gang involvement. The court allowed presentence custody credits
of 162 days actually served plus 80 days conduct credits. In its oral pronouncement the court imposed a
state restitution fine “$200 for each year of incarceration pursuant to
1202.4(b),” plus “an additional $200 suspended pursuant to 1202.45.” In the abstract of judgment these assessments
appear as an $800 fine “forthwith” under “PC 1202.4(b)” and another of $800
“per PC 1202.45 suspended unless parole is revoked.”

Defendant
filed this timely appeal.

Discussion

I. Penal
Code section 654

Defendant
contends that all three of the charges in this matter arose from the same
conduct and that sentence on the two lesser charges should therefore have been
stayed under Penal Code section 654, subdivision (a), which as pertinent here
provides, “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.” This statute “precludes multiple punishment
for a single act or omission, or an indivisible course of conduct.” (People
v. Deloza (1998) 18 Cal.4th 585, 591.)
Where a defendant is convicted of two or more charges falling within
this description, the court is required to impose sentence on all such charges,
but stay execution on all but the charge prescribing the longest term of
imprisonment. (Ibid.) For these purposes,
concurrent sentences constitute multiple punishment, and execution of sentence
must be stayed as to all but one of them.
(See ibid.)

“The
divisibility of a course of conduct depends upon the intent and objective of
the defendant. If all the offenses are
incidental to one objective, the defendant may be punished for any one of them,
but not for more than one. On the other
hand, if the evidence discloses that a defendant entertained multiple criminal
objectives which were independent of and not merely incidental to each other,
the trial court may impose punishment 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. [Citations.] The principle
inquiry in each case is whether the defendant’s criminal intent and objective
were single or multiple. Each case must be determined on its own facts. [Citations.]
The question whether the defendant entertained multiple criminal
objectives is one of fact for the trial court, and its findings on this
question will be upheld on appeal if there is any substantial evidence to
support them. [Citations.]” (People
v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) However a fact necessary to sustain the
judgment will be inferred only when “the trier of fact could reasonably deduce”
that fact “from the evidence.” (>People v. Cleveland (2001) 87
Cal.App.4th 263, 271.)

Respondent
concedes that two of the offenses of which defendant was convicted—assault and
participation in a criminal street gang—shared the same criminal objective,
such that execution of the sentence on the former must be stayed. The concession is well taken. (See People
v. Mesa (2012) 54 Cal.4th 191, 197 [trial court erred by not staying
sentence on gang participation charge, where underlying shootings also formed
basis for assault charges].) Respondent
contends, however, that the charge of grand theft from the person could be
found to have a distinct criminal objective, i.e., to “thwart the victim’s
ability to report the attack and obtain help.”
Respondent states that the record contains substantial evidence to
support such a finding, in that Doe “had limited mobility and needed the cane
to walk,” and the cane had “limited monetary value,” rendering it “unlikely
that appellant assaulted Doe in order to facilitate theft of the cane.”

This
treatment erects a straw man, since no one contends, or could plausibly
contend, that the assault was intended to facilitate the theft. Rather, as respondent has conceded, the
purpose of the assault was to further the interests of the Norteño street gang
by brutalizing a Sureño trespasser. The
relevant question is whether the theft of the victim’s cane had this same
purpose, or was accompanied by a distinct criminal intent. We find no basis in this record for a
reasonable inference that the theft was intended, as respondent suggests, to
prevent or delay apprehension by interfering with the victim’s ability to
report the assault.

We may
assume for purposes of this analysis that Doe used the cane “to assist her in
walking,” though the officer who so testified failed to articulate any basis
for her “belie[f]” to that effect. It
hardly follows that the cane was taken to prevent the victim from reporting the
crime. Such an intention presupposes that
defendant sought to avoid apprehension for her conduct. But that intention is belied by the complete
absence of evidence that defendant made any attempt to elude the police. The only real evidence bearing on the
question is an officer’s testimony that the victim was still at the scene when
she identified defendant as her chief assailant. The prosecution trial brief adds the detail
that after the assault, defendant re-entered the bar, taking the cane with her. The probation report is even more explicit,
stating that after arriving at the scene and questioning the victim, officers
“received information that a female matching the description of one of the
[assailants], was sitting inside Jaime’s Bar.”
This is hardly the conduct of a person seeking to avoid capture. Moreover, if defendant’s objective was simply
to escape the consequences of her conduct she might have been expected to
dispose of the cane, which police would otherwise be likely to seize as
evidence. Instead officers found the
cane in the bar, next to her male codefendant.


A far more
likely purpose for the theft, and the only one we find reasonably inferable
from this record, is the same one that accompanied the other two charges: to terrorize the victim, and those who might
identify with her, in order to assert Norteño suzerainty over the bar and
environs. This would appear obvious even
without the added fact that, as respondent acknowledges, the cane was blue, a
color associated with Sureño affiliation, as red is with Norteño. Respondent asserts that this fact could not
establish a gang-related objective because the cane “had no gang markings, and
there was no evidence that it was symbolically tied to the rival gang in any
way.” The second clause is contradicted
by the conceded fact that the cane was blue.
The first is entirely without record support. At most there was a lack of affirmative
evidence that the markings on the cane—“some sort of stars and moons”—had any
gang-related significance. No one
bothered to ask any of the testifying officers, at least one of whom was
apparently viewed as an expert on such matters, whether these markings might be
further indicia of gang affiliation. In
the absence of such a question—and a negative answer—the record is mute as to
whether the cane bore “gang markings.”
In any event, its color alone was enough to make it an emblematic of the
victim’s acknowledged gang affiliation.
It might therefore be viewed as a worthy trophy of war.

The obvious
purpose of the assault was to humiliate the victim as punishment for invading
Norteño territory, thereby affirming the gang’s dominance over that
territory. Taking the cane was simply an
additional act of terror. Since the record
does not support a reasonable
inference of the independent purpose posited by respondent, it cannot sustain
the separate punishment imposed for the theft charge. Accordingly the sentence on that charge must
be stayed.

II. Presentence
Custody Credits

Defendant
contends that as a matter of equal
protection she is entitled to additional credit for presentence confinement
under the version of Penal Code section 4019 that took effect on October 1,
2011. She acknowledges that our adoption
of this argument is foreclosed by People
v. Brown, supra, 54 Cal.4th 314, but stands on the objection to preserve
such federal remedies as may be available to her. We may therefore pass the argument without
further comment, except to acknowledge that we are compelled to reject it. (See Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

III. Fines

At
defendant’s original sentencing on May 26, 2009, the court placed her on
probation and adopted the recommendations of the probation report, including
that she pay a restitution fine of $600 pursuant to Penal Code section 1202.4,
subdivision (b) (§ 1202.4(b)), as well as a conditional probation
revocation fine in like amount under Penal Code section 1202.44 (§
1202.44).

When the
court revoked probation on July 13, 2011, it again imposed a restitution fine
under section 1202.4(b). The fine is
described in the minutes as “$200 multiplied by the number of years of
imprisonment, multiplied by the number of convicted Felony counts,” based upon
“PC 1202.4(b)(2).” At the hearing the
court expressed an intention to impose a fine of “$200 for each year of
incarceration pursuant to 1202.4(b).”
The abstract of judgment reflects a fine of $800 under section
1202.4(b).

Defendant
contends that the court erred by imposing this fine upon revocation of
probation, because the original $600 fine remained in effect and the court had
no authority to impose a second, additional such fine. It is certainly correct that a court cannot
impose two fines under section 1202.4(b) on the same charge. In People
v. Chambers (1993) 65 Cal.App.4th 819, 820, 823, the court held that when a
revocation fine is imposed in an order granting probation, that fine survives a
subsequent revocation of probation. The
sentencing court is without authority to impose a second restitution fine, and
a second such fine must be stricken, even if first challenged on appeal. (Ibid.;
see also People v. Andrade (2002) 100
Cal.App.4th 351, 357; People v. Arata
(2004) 118 Cal.App.4th 195, 201-202.)
The court is also without authority to increase the original fine, which
“may only be imposed once at the time of conviction, which was when the
probation was initially granted.” (>People v. Perez (2011) 195 Cal.App.4th
801, 805.)

We note a
certain amount of disarray in the cases concerning the interpretation to be
placed on a trial court’s pronouncement of a section 1202.4(b) fine after
revoking probation. We believe the
soundest approach is also the simplest and clearest: Where a trial court pronounces a fine in the
same amount as the fine originally imposed, the pronouncement must be presumed >not to impose a second, additional fine
but merely to reiterate the fine
already imposed. In this view, the trial
court commits no error merely by recording such a fine in the abstract of
judgment. Indeed it should be recorded there, not to impose an additional obligation on
the defendant but simply to memorialize the obligation already imposed. (See People
v. Hong (1998) 64 Cal.App.4th 1071, 1083.)

This at any
rate should be the rule in the absence of some indication that the court
intended to impose an additional or increased fine. In that case, the correct remedy is to modify
the judgment—and the abstract—to show only the original fine, or more
precisely, so much of that fine as remains unpaid. Here, the abstract should be modified to
reflect the original fine of $600.

Respondent
somewhat obliquely identifies a second deficiency in the judgment by contending
that fine objected to by defendant was not an additional restitution fund fine
under section 1202.4(b) but a probation revocation fine pursuant to Penal Code
section 1202.44. The record contradicts
this view in at least three respects:
(1) The amount recited in the abstract of judgment differs from the
original restitution fund fine; (2) at the sentencing hearing following the
revocation of probation, the court never mentioned section 1202.44 or a
probation revocation fine; and (3) the abstract of judgment attributes the fine
to section 1202.4(b), and contains no entry in the space provided for a section
1202.44 fine.

However the
abstract should contain an entry in
that space. In its order granting
probation the court quite properly imposed a section 1202.44 fine of $600, to
be payable if but only if probation were revoked. This assessment became “effective upon the
revocation of probation,” and could “not be waived or reduced by the court,
absent compelling and extraordinary reasons stated on record.” (§ 1202.44.)
It was thus “mandatory” (People v.
Guiffre (2008) 167 Cal.App.4th 430, 434), if not self-executing. (See People
v. Hong, supra, 64 Cal.App.4th at
p. 1084 [failure to impose parole revocation fine was “jurisdictional error”
which state could raise for first time on appeal].)

Defendant
concedes that the court should have imposed a probation revocation fine in the
amount of the original restitution fund fine ($600). We will direct such a modification.

Disposition

The
judgment is modified to (1) state that the sentences on counts 2 and 6 are
stayed; (2) impose (i.e., reiterate) a restitution fund fine of $600 pursuant
to section 1202.4(b); (3) impose (reiterate) a parole-revocation fine of $600
under Penal Code section 1202.45; and (4) impose a probation revocation fund
fine of $600 under section 1202.44. The
trial court is directed to prepare an amended abstract of judgment reflecting
these changes and to forward the same to appropriate authorities. As so modified, the judgment is affirmed.







______________________________________

RUSHING, P.J.













WE CONCUR:













____________________________________

PREMO, J.













____________________________________

ELIA,
J.