P. v. Richer

Filed 12/10/08 P. v. Richer CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. John I. Kelly, Judge.

Ross Thomas, 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, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant, Jerry Diaz Richer, Jr., of first degree burglary (count I/Pen. Code, 460, subd. (a)),^[1]making criminal threats (count II/ 422), misdemeanor vandalism (IV/ 594, subd. (b)(1)), misdemeanor battery on a cohabitant (count V/ 243, subd. (e)(1)), and misdemeanor cruelty to a child (count VI/ 273a, subd. (a)).^[2] In a separate proceeding the court found true a prior prison term enhancement ( 667.5, subd. (b)), a serious felony enhancement ( 667, subd. (a)), and allegations that Richer had a prior conviction within the meaning of the three strikes law ( 667, subds. (b)-(i)).

On December 17, 2007, the court sentenced Richer to an aggregate term of 18 years 4 months as follows, the upper term of 6 years on his burglary conviction, doubled to 12 years because of Richers prior strike conviction, a consecutive 8-month term on his criminal threats conviction, doubled to 16 months because of Richers prior strike conviction, and concurrent 1-year terms on his three misdemeanor convictions.

On appeal, Richer contends the court violated section 654s prohibition against multiple punishment when it imposed a consecutive term on his criminal threats conviction. We will affirm.

FACTS

Michele Rojas testified she had a daughter with Richer from a relationship that ended in 1998. In 2006, she married Joseph Rojas.^[3]

On May 14, 2007, at approximately 11:30 p.m., Michele and Joseph were in bed when she heard banging at the front door. She and Joseph got up and went to investigate. Michele looked through a glass portion of the door and saw Richer and Anthony Perez outside. Richer was kicking the door and cursing and yelling for Joseph to come outside. Michele told Joseph to leave because Richer was going to break the door. Joseph left the front door area and went to the living room as Richer began yelling for him to get his punk ass outside because Richer had a nine millimeter and was waiting to blast his punk ass. Michele then saw Richer point a handgun at the door.

Michele ran to the dining room and called 911 as Richer kept banging on the door. She then ran to her six-year-old sons room where her daughter was also sleeping. Michele woke up her daughter and as she grabbed her son, she heard the front door break open. She threw a blanket on her son and ran into the bathroom with her daughter. Michele slammed the door and locked it but Richer kicked it in. Richer then stated, You want to call child support on me? and began cursing and choking her. Richer also told her, [A]fter tonight[,] [you will] no longer have a husband.

Micheles daughter began crying and yelling and throwing things at Richer. Richer stopped choking Michele when her daughter asked him, Wheres my stepdad? What did you do to him? Richer replied, What did you say? What did you call him? and grabbed her by her pajama shirt. Michele stepped between them and told Richer to keep his hands off of her daughter. At that point, Perez peeked into the bathroom and told Richer they needed to leave because the sheriffs department was there. Sheriff deputies soon arrived and arrested Richer and Perez. Michele did not see the gun in the house, nor did the deputies find one. Richers threats caused her to be concerned for Josephs safety.

Joseph Rojas testified he looked through the glass in the front door and saw Richer with a beer bottle in his left hand and his right hand tucked behind his back. Richer was yelling and cursing trying to get Joseph to go outside. Joseph yelled at him to calm down and return the next day when he was sober. Richer yelled out that he was going to blast Joseph with his 9. When the door came crashing down, Joseph ran out the back door and jumped the fence into his neighbors backyard. He then ran to the front, and jumped back into his front yard just as sheriff deputies was pulling up. Joseph ran to his back door and saw someone bolt out the door and climb over the back fence. Richers threat caused Joseph to be concerned for his safety.

DISCUSSION

Richer contends the evidence showed his criminal threats and burglary offenses were committed during an indivisible course of conduct whose singular intent was to threaten Joseph. Thus, according to Richer, section 654 prohibited the court from imposing a consecutive term on his criminal threats conviction. Richer is wrong.

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. (Italics added.)

A course of conduct that constitutes an indivisible transaction violating more than a single statute cannot be subjected to multiple punishment. [Citations.] 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. [Citation.] 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. [Citation.] Section 654 turns on the objective in violating both provisions, not the Legislatures purpose in enacting them. [Citation.] (People v. Martin (2005) 133 Cal.App.4th 776, 781, italics added.)

Each case must be determined on its own circumstances. [Citations.] 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 andpresume 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.)

Section 422 prohibits the making of criminal threats even if there is no intent of actually carrying [them] out, if they cause a person to be in sustained fear for his or her own safety or for his or her immediate familys safety. ( 422, italics added.)

Here, even though Joseph was the object of Richers threat, the court could reasonably find that Michele was also a victim of these threats because they caused her to be in sustained fear for her husband, Joseph.

Further, count 1 of the information charged Richer with first degree burglary because he entered the Rojas residence with the intent to commit larceny or a felony. The jury instructions and the prosecutions argument made it clear to the jury that the prosecution was contending that Richer entered the residence with the intent to commit either the felony offense of assault with a firearm or uttering criminal threats, or both. However, the jurys acquittal of Richer of the felon in possession offense charged in count III indicates that it did not find beyond a reasonable doubt that Richer entered the residence armed with a firearm. In view of this, the court could reasonably have concluded that in finding Richer guilty of first degree burglary, the jury found that he entered the residence with the intent of continuing to make criminal threats that victimized both Michele and Joseph.

[A]s a general rule, even though a defendant entertains but a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim. (People v. Martin (2005) 133 Cal.App.4th at p. 781.) Under this exception, even though a defendant entertains but a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim. [Citations.] The reason for the multiple victim exception is that when a defendant commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons, his greater culpability precludes application of section 654. [Citation.] (People v. Garcia (1995) 32 Cal.App.4th 1756, 1781.) In People v. Solis (2001) 90 Cal.App.4th 1002, the court found that making a criminal threat is an act of violence. (Id. at p. 1023.)

Here, since both Michele and Joseph were victims of one or more of Richers criminal threats, section 654 did not prohibit the court from punishing Richer for his burglary and making criminal threats conviction, which were both related to this conduct. Thus, the court could find that Richers conduct in entering the house with the intent to commit criminal threats that victimized Michele, justified the sentence imposed on Richers burglary conviction in count I, and the criminal threats he uttered at the front door justified a separate, consecutive term on Richers criminal threats conviction in count II. Accordingly, we conclude that the court did not violate section 654s prohibition against multiple punishment when it imposed a consecutive term on Richers criminal threats conviction.

DISPOSITION

The judgment is affirmed.

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^*Before Wiseman, Acting P.J., Cornell, J., and Kane, J.

^[1] Unless otherwise indicated all further statutory references are to the Penal Code.

^[2] The jury acquitted Richer of possession of a firearm by a felon ( 12021, subd. (a)(1)) as charged in count III.

^[3] For purposes of clarity, Michele and Joseph Rojas are referred to by their first name, and Micheles and Richers daughter is referred to as Micheles daughter.