Filed 1/3/18 P. v. Bates CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



THE PEOPLE,

Plaintiff and Respondent,

v.

AMADOR DEAN BATES,

Defendant and Appellant.


E066272

(Super.Ct.No. BAF1400322)

OPINION


APPEAL from the Superior Court of Riverside County. Michele D. Levine, Judge. Affirmed in part; reversed in part and remanded with directions.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Amador Dean Bates guilty of attempted arson (Pen. Code, § 455, subd. (a), count 1), assault with a deadly weapon other than a firearm (§ 245, subd. (a), count 2), and misdemeanor vandalism (§ 594, subd. (a)(1), count 3). A trial court sentenced him to a total of three years in state prison, consisting of three years on count 2 (the principal count), plus a concurrent two years on count 1, and one year on count 3. The court also imposed various fines and fees, including a restitution fine of $600, pursuant to section 1202.4.
On appeal, defendant contends: (1) the trial court should have stayed the sentences on counts 1 and 3, pursuant to section 654; and (2) the court imposed the incorrect amount for the restitution fine. The People concede, and we agree, that the court should have stayed the sentence on count 1. We also agree that the court imposed the incorrect amount for the restitution fine on each count. Therefore, we remand the matter to the trial court to stay the sentence on count 1 and determine the appropriate restitution fine on each count. In all other respects, we affirm.
FACTUAL BACKGROUND
Defendant and his girlfriend (the victim), lived in a house owned by defendant’s father. On June 30, 2013, defendant told the victim he wanted to have a barbeque for his son that day. Because of the late notice, the victim refused to help him with the party. She stayed inside her bedroom the entire time.
Later that night, defendant came inside the house with a couple of his friends, and the victim went outside to the front porch to smoke a cigarette. The victim heard her friend talking in the garage, so she went to the garage to talk to him. While she was in the garage, the victim heard a crash, and heard defendant say, “Oh well.” The victim testified at trial that defendant had pushed the air conditioning unit out of the bedroom window. At some point, he also knocked over the big screen television in the living room, so it was face down on the floor. Defendant came out of the house and left for a few minutes, but then came back. He began yelling and throwing condiments from the barbeque. He also turned a table over. While she was still outside, the victim heard glass breaking and things hitting the ground. Defendant threw things at the kitchen window and broke it.
The victim told her friend he needed to take his children and go. The victim, her friend, and his children went inside the house. The victim heard defendant come in the back door, so the victim, her friend, and his children went out the front door to leave. The victim had a feeling he was upset with her because she did not participate in the barbeque. She told her friend and his children to just leave. The victim went outside with them and stood on the street while her friend and his children walked away. Then defendant came out to the front porch and yelled at the victim’s friend to take the victim with him. The victim’s friend just kept walking.
Defendant came down the stairs of the porch in the victim’s direction and continued to yell at her. She walked up the driveway and entered the house through the back door. The victim locked the back door. She could still hear defendant yelling outside. She went to the bedroom to get her shoes. Defendant shoved a broomstick through the bedroom window. He then told her to “get out.” The victim found her shoes and purse and tried to go out the front door, but it would not open. While the victim was in the house, defendant kicked in the metal portion of the back door, so that it caused the door to jam. Thus, the door would not open. The victim was trapped in the house.
At some point, a neighbor called 911. A recording of the 911 call was played for the jury. The neighbor reported that she saw a person pouring gasoline around the house. She heard him say, “You better call the fire department. There is going to be a fire.”
Police officer Robert Fisher was dispatched to the scene and testified at trial that as soon as he got out of his patrol car, he could smell gasoline. The smell got stronger as he approached the house. The police got the victim out of the house, and Officer Fisher talked to her. She said defendant was upset, had been drinking, and poured gasoline around the house. Officer Fisher went inside the house, and the odor of gasoline was strong. He went into the living room and smelled the gasoline “everywhere in the room.” Officer Fisher then got called away from the house by another officer, who was attempting to contact defendant. Officer Fisher went to help and they found defendant crouched behind a wall. He smelled like gasoline. Officer Fisher eventually took defendant to the police station to book him. When the officer took everything out of defendant’s pockets, he found a lighter.
The battalion chief for the California Department of Forestry and Fire Protection was also dispatched to the scene. He testified at trial that he smelled gasoline on the exterior of the property. He entered the residence and smelled gasoline inside, as well. When he talked to the victim, she said she and defendant got into a domestic dispute, and he got a gas can from a truck parked in the driveway. Defendant came back into the house, poured gasoline inside the house, then went outside and poured gasoline on the outside of the house. She also said defendant locked the deadbolt on the front door from the outside and kicked in the metal screen security door. The victim said she was afraid defendant was going to light the gasoline on the outside of the house, and she would not be able to get out of the house.
At trial, the victim denied that she saw defendant with a gas can or that she saw him pouring gas anywhere. The court noted that the victim was a hostile witness to the People.
ANALYSIS
I. The Court Should Have Stayed the Sentence on the Attempted Arson Conviction
Defendant argues that the trial court should have stayed the sentences on his attempted arson and vandalism convictions (counts 1 and 3), pursuant to section 654, because he only had one intent and objective in committing all his offenses—to harm the victim. In other words, he poured gasoline around the house where the victim was trapped and broke a window, presumably so that gas vapors could reach her and ignite. The People concede that defendant harbored the same intent in committing the attempted arson and assault with a deadly weapon (gasoline) and, thus, the sentence on count 1 should be stayed. However, the People argue that he harbored a different intent in committing vandalism, in that his objective was to destroy property, not to facilitate harm to the victim. We agree with the People.
A. Section 654
Section 654 “precludes multiple punishments for a single act or indivisible course of conduct.” (People v. Hester (2000) 22 Cal.4th 290, 294.) “It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) In other words, “[d]ifferent criminal acts ‘may be divisible even though “closely connected in time and a part of the same criminal venture.” ’ [Citation.] The question is to be resolved upon the facts of each case.” (People v. Deloach (1989) 207 Cal.App.3d 323, 338.)
B. The Court Should Have Stayed the Sentence on Count 1
Defendant was found guilty of attempted arson (count 1) and assault with a deadly weapon other than a firearm (count 2). In finding him guilty of count 1, the jury had to find that he attempted to set fire to or burn a structure or property, and that he acted willfully and maliciously. In finding him guilty of count 2, the jury had to find, among other elements, that he “did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person,” and that he did the act willfully. Defendant argues, and the People concede, that the sole purpose of committing the attempted arson was to facilitate the assault. We agree. The evidence showed that defendant poured gasoline both inside and outside of the home, trapped the victim in the home, and had a lighter in his pocket. His single objective was to harm the victim. Accordingly, the sentence on count 1 should have been stayed pursuant to section 654.
C. Section 654 Does Not Apply to the Vandalism Conviction
Defendant was found guilty of vandalism in count 3. In finding him guilty, the jury had to find that he maliciously damaged or destroyed someone else’s property. Defendant contends that the vandalism conviction was based on his conduct of breaking windows and kicking in the door to the house. He further claims that “[t]he facts permit only one inference; his intent was to reach and to harm [the victim].” While defendant’s intent in breaking the bedroom window with the broomstick when the victim was in the room, and in kicking in the back door, may have been to somehow facilitate the assault, the evidence shows other incidents of vandalism. The evidence showed that defendant had been causing destruction around the house earlier in the evening, with no intent to harm the victim. When the victim was in the garage, defendant pushed the air conditioning unit out of the bedroom window. Defendant then came out of the house, began yelling and throwing condiments from the barbeque, and turned a table over. Moreover, while the victim was still outside, defendant threw things at the kitchen window and broke it. He also knocked over the big screen television in the living room. Defendant’s apparent objective with the air conditioning unit, television, and windows was to damage the property, not to facilitate the assault.
Defendant argues that the record does not show he knew the victim was outside when he broke the kitchen window, and that it was “most reasonable that his intent was to reach her, whether she was actually there or not.” He also contends that, when he broke the bedroom window, he “may have been hoping to spread more gasoline or vapors that would reach the lighted candle in the room, or he may have been hoping to use his lighter to start a fire through the broken window.” He then claims that “the only reasonable inference is that [he] saw [her], broke the window to gain access to her, and harm her.” These claims are pure speculation. We note the evidence shows that when defendant broke the bedroom window, it was dark inside the bedroom, and the victim was not near the window; rather, she was on the other side of the room. Moreover, the evidence does not show that defendant entered the house through the window after that to “reach her,” as he suggests. Thus, it is not reasonable to infer that he saw her and broke the window to gain access to her.
We conclude the evidence shows that defendant’s intent in committing vandalism was separate from his intent in assaulting the victim. Thus, section 654 does not apply to defendant’s sentence on count 3.
II. The Matter Should Be Remanded for the Court To Reassess the Restitution Fine
Defendant argues that the trial court’s imposition of a restitution fine of $300 for each offense was incorrect because the minimum restitution fine at that time was $280. The People contend that defendant failed to raise the objection at sentencing and has, thus, forfeited the argument. In the alternative, the People assert that this court should remand the matter. We agree that the matter should be remanded.
At the sentencing hearing, the court stated the following to defendant: “I will order that you pay a restitution fine. That is at an amount of $300 per count of which you were convicted. In this instance, the Court is going to have that be—well, one was a misdemeanor. Let’s see. Apparently that does not matter. The Court is going to impose $600 in terms of the . . . fine that is imposed pursuant to 1202.4 of the Penal Code . . . that’s the minimum fine that the Court can impose.”
In 2013, when defendant’s offenses occurred, the minimum fine set by section 1202.4, subdivision (b), was $280. However, at the time he was sentenced, section 1202.4 had been amended to increase the minimum restitution fine from $280 to $300. That amendment applied only to felonies committed after January 1, 2014. The amount in effect at the time of the offenses ($280) should have been imposed. (§ 1202.4, subd (b)(1); Stats. 2012, c. 873 (S.B. 1479), § 1.5.) The People agree that, since defendant committed his crimes in 2013, the $280 minimum restitution fine applied. They further assert that the minimum restitution fine was $280 and the maximum fine was $10,000. Thus, they claim that, while the trial court may have been mistaken about the minimum fine for defendant’s crimes, it also may have thought that $300, rather than $280, was an appropriate fine in this case. The People therefore contend that this court should remand the matter for the trial court to reassess the restitution fine.
The court expressly stated that it was imposing $600, which was the minimum fine it believed it could impose. Thus, the court apparently intended to impose the minimum restitution fine under section 1202.4. It also stated that $600 was “at an amount of $300 per count of which [defendant was] convicted.” In other words, the court calculated the total amount of the restitution fine by adding $300 per count on counts 1 and 2. However, as the People concede, the $280 minimum restitution fine applied. Therefore, we will remand the matter for the court to reassess the total restitution amount.
DISPOSITION
The matter is remanded to the superior court. On remand, the court is directed to stay the sentence on count 1 pursuant to section 654 and to reassess the restitution fine under section 1202.4. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


McKINSTER
Acting P. J.


We concur:


MILLER
J.


FIELDS
J.