P. v. Ulloa
Filed 4/19/13 P. v. Ulloa CA4/3
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and Respondent,
v.
GERMAN ULLOA,
Defendant and Appellant.
G046365
(Super. Ct. No. 11CF1868)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, David
A.
Hoffer, Judge. Affirmed in part and
reversed in part.
Sachi Wilson, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Lilia E. Garcia and Felicity Senoski,
Deputy Attorneys General, for Plaintiff and Respondent.
Appellant was convicted
of, inter alia, assaulting, battering and
stealing from his former girlfriend Margarita Velasco. It is undisputed one of his convictions must
be reversed under the lesser included offense doctrine and the amount of his
restitution fine must be reduced $40.
The only remaining issue is whether the trial court erred in failing to
stay appellant’s sentence for theft pursuant to Penal Code section 654. Finding no error in this regard, we affirm
the judgment in all other respects.
FACTS
On
November 13, 2010,
appellant grabbed Velasco’s cell phone from her and broke it because he thought
she was talking to another man. Velasco
tried to defuse the situation, but appellant got so worked up, he head-butted
her, and she ended up calling the police. In the wake of this incident, Velasco moved to
a separate residence. Although she
considered her relationship with appellant to be over, she still stayed in
touch with him regarding their two children.
In fact, on the night of December 11, 2010, she had appellant
baby-sit the children while she was at work.
Velasco worked through the night, and the following day, appellant
called her and asked when she was coming home.
Velasco said she would be home in a while, but appellant was
suspicious. After he hung up, he called
Velasco’s boss and learned she wasn’t at work.
He then called Velasco back and accused her of lying to him. Velasco told appellant she was on her way to
get gas and would be home soon.
When
Velasco arrived home, appellant questioned her about her whereabouts, and they
began to argue in Velasco’s bedroom.
During this contretemps, Velasco received a phone call from her friend
Joel Madrid. She told Madrid
she would call him back and ended the call, but this only fueled appellant’s
suspicions. He grabbed the phone from
Velasco, went into the bathroom and closed the door.
Velasco
opened the door and discovered that appellant, as he was wont to do, was going
through her phone to find out who had just called her. Velasco tried to retrieve the phone, but
appellant tucked it into his pocket. He
then grabbed her by the neck and pinned her against the wall. Velasco told him to let her go, but he began
choking and threatening her. With his
hand around her throat, he told her he was never going to let her alone and
would kill her before she ever went out with another man.
Appellant choked Velasco
until she passed out. He then carried
her to a sofa and went to get her some water.
While he was out of the room, Velasco came to and ran for help. Although the police were summoned, appellant
fled before they arrived. He continued
to stalk Velasco in the weeks to come, and once broke into her house while Madrid
was there. Appellant assaulted Madrid,
damaged his vehicle, and nearly ran him over as he was leaving the scene.
Based
on the choking incident, appellant was convicted of domestic battery with
corporal injury and assault. He was also
convicted of grand theft for taking Velasco’s phone during the incident. The court sentenced him to a total term of
three years in prison, including a concurrent term of 16 months for the
theft. It also ordered him to pay a
restitution fine of $240.
DISCUSSION
The
Attorney General concedes appellant’s conviction for assault must be reversed
because that offense is a lesser included offense of domestic battery with
corporal injury, and the crimes were based on the same conduct. (
1227-1228.) The state also
concedes appellant’s restitution fine must be reduced to $200 because, although
the statutory minimum for such a fine is now $240 (Pen. Code, § 1202.4,
subd. (b)(1)), the statutory minimum at the time appellant committed his crimes
was $200, and the trial court intended to impose that amount. (People
v. Souza (2012) 54 Cal.4th 90, 143 [retroactive application of statute
increasing amount of restitution fine violates ex post facto principles].)
The
only remaining issue is whether the trial court should have stayed appellant’s
sentence for theft pursuant to Penal
Code section 654. Under that section,
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.†(Pen. Code, § 654, subd. (a).) The statute “
course of conduct which violated more than one statute
but nevertheless constituted an indivisible transaction.†(People
v. Perez (1979) 23 Cal.3d 545, 551.)
If,
in the latter situation, all of the crimes were incident to one objective,
multiple punishment is prohibited. (People
v. Perez, supra, 23 Cal.3d at p. 551.)
However, if 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.†(
639.)
Appellant
contends he “committed the assaults as a means of committing the theft,†but we
consider that the least likely explanation of this incident. The record shows he took Velasco’s phone
the wall and started choking her, he had already taken her phone and secured it
in his pocket. Had the phone been his
objective, he could have walked out with it then. But appellant’s apparent intent behind the
taking was to deprive Velasco of her property so he could find out who had
called her. In contrast, his intent in
attacking her afterwards was quite obviously to do her physical harm because he
was angry with her. Although the attack
occurred on the heels of the theft, temporal proximity between the crimes does
not preclude multiple punishment. (
789.) Because the record supports the
trial court’s implied conclusion appellant harbored multiple intents during the
episode, he was properly punished for the theft. (People
v. Osband (1996) 13 Cal.4th 622, 730-731.)
DISPOSITION
Appellant’s
conviction for assault on count 2 is reversed, and his restitution fine is
reduced from $240 to $200. The clerk of
the trial court is directed to prepare a new abstract of judgment reflecting
these changes and to send a certified copy thereof to the
affirmed.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
MOORE, J.
IKOLA, J.
