P. v. Rodriguez
Filed
7/17/14 P. v. Rodriguez CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 PEOPLE,
Plaintiff and Respondent,
v.
MANUEL DEJESUS
RODRIGUEZ,
Defendant and Appellant.
F066666
(Super. Ct. No. 12CM2659)
O P I N I O N
THE COURT
APPEAL from
a judgment of the Superior Court of Kings
County. Thomas DeSantos, Judge.
Eloy I.
Trujillo, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy
Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury
convicted appellant, Manuel Dejesus Rodriguez, of individual counts of infliction of
cohabitant (Pen. Code, § 273.5, subd. (a);
and making criminal threats (§ 422; count 7), and two counts of assault with a
firearm (§ 245, subd. (a)(2); counts 4, 8).
The jury also found true enhancement allegations that in committing the
count 2, 3, 4 and 8 offenses, appellant personally used a firearm within the
meaning of section 12022.5, subd. (a).
The court imposed an aggregate prison term of 19 years consisting of the
following: on count 2, the
four-year upper term plus 10 years for the accompanying firearm use enhancement;
on count 3, eight months on the substantive offense plus 16 months on the
accompanying enhancement; on count 7, eight months; and on count 8, one year on
the substantive offense plus one year four months on the accompanying
enhancement. On count 4, the court
imposed, and stayed pursuant to section 654, the four-year upper term on the
substantive offense plus 10 years on the enhancement.
On appeal,
appellant contends the imposition of consecutive sentences on counts 3 (false
imprisonment), 7 (criminal threats) and 8 (assault with a firearm) violated the
section 654 proscription against multiple punishment. We reject appellant’s challenges to the terms
imposed on counts 7 and 8, agree with appellant that section 654 bars
imposition of sentence on count 3, modify the judgment accordingly, and affirm
the judgment as modified.
FACTS
Veronica
Rios met appellant in 2011, and at some point thereafter appellant moved into
Rios’s apartment where she lived with her two children.
and come back,†leaving for one or two days before returning again.
On July 23,
2012, at approximately 2:00 or 3:00 a.m., while Rios and appellant were in the
living room of her apartment, appellant began “checking [Rios’s] phone†and
asking her “who [she] was talking to[.]†Appellant got very angry and when Rios went
into the bedroom she shared with appellant, appellant came in, told her she had
to tell him who she had been talking to, and pulled out a gun that he had in
the waist area of his
pants. Rios was sitting on the floor. As appellant continued to demand Rios tell him
who she had been talking to, he pointed the gun at her neck, mouth,
stomach and forehead with the gun and, with a twisting motion, pressed the gun
into her neck. At some point, with the
gun in one hand he struck her in the head with his other hand, and at some
point thereafter he kicked her two or three times in the stomach.
Appellant
told Rios that “if [she] left he already knew who he could pay to do something
to [her].†He also said “if [she] left
he knew who he was going to get to do something.†Rios understood the latter statement as a
threat to hurt her children. Although appellant
did not “exactly†say he would harm her children, Rios “understood [him to
mean] something like that.â€
After
appellant kicked Rios in the stomach, he went into the kitchen, but before
leaving the bedroom he told Rios to take her clothes off. Thereafter, Rios wrapped herself in a towel,
left the bedroom and began walking in the direction of the living room to get
her phone. Appellant, however, came out
of the kitchen and, holding a gun or a knife—Rios could not recall which—pushed
her back into the bedroom and “threw [her] on the bed.â€
While in
the kitchen, appellant had acquired a “kitchen knife,†which he pointed at
Rios’s vagina, touching her skin with the knife, as Rios, the towel having come
unwrapped, lay naked on the bed. As he
pointed the knife at Rios, he told her she “was going to see what happens to
women who are with other men.†At some
point thereafter he put the gun on a night stand close to the bed, tossed the
knife away, and the two had sexual intercourse. Rios had sex with appellant because she was “afraid
he would get the gun again or something.â€
Rios did
not attempt to leave the apartment during the night because her children were
in the apartment. The next morning, Rios
was getting ready to go to work and was drinking coffee when appellant came
into the kitchen and asked her why she was “sad.†Rios responded that he knew the answer to
that question, and appellant said “he didn’t want [Rios] to tell anyoneâ€
“because he had other people [and] that even if he wasn’t there he would harm
[Rios] or [her] family.â€
DISCUSSION
Appellant
contends section 654 precludes imposition of sentence on each of counts 3, 7
and 8 because each of those offenses was committed as part of a “continuous
course of domestic violence against a
single victim.â€
Legal Background
Section 654, subdivision (a) provides, in relevant 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.†However, although under
the plain language of the statute multiple punishment may not be imposed for a
single “act or omission†(§ 654, subd. (a)), “[c]ase law has expanded the meaning of section 654 to apply to
more than one criminal act when there was a course of conduct that violates
more than one statute but nevertheless constitutes an indivisible
transaction.†(People v. Hairston (2009) 174 Cal.App.4th 231, 240.)
Whether a course of conduct consisting of multiple acts constitutes an
indivisible transaction depends on the “defendant’s intent and objective
....†(People v.
335.) “[I]f 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.†(
On the other hand, “[i]f [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.)
Our Supreme Court has “often said that the purpose of section 654 ‘is to insure that a defendant’s punishment will be commensurate
with his culpability’†(People v. Latimer
(1993) 5 Cal.4th 1203, 1211 (Latimer)),
and “decisions ... have refined and limited application of the ‘one intent and
objective’ test, in part because of concerns that the test often defeats its
own purpose because it does not necessarily ensure that a defendant’s
punishment will be commensurate with his culpability.†(People
v. Kwok (1998) 63 Cal.App.4th 1236, 1253 (Kwok)). Thus, as our Supreme
Court noted in Latimer, cases decided
since the intent-and-objective rule was announced in Neal v. State of California (1960) 55 Cal.2d 11 have “limited the
rule’s application in various ways,†including, in some cases, by “narrowly
interpret[ing] the length of time the defendant had a specific objective, and
thereby found similar but consecutive objectives permitting multiple
punishment.†(Latimer, at pp. 1211-1212.) These
cases include People v. Louie (2012)
203 Cal.App.4th 388, where the court rejected a section 654-based challenge to
the imposition of sentence on multiple offenses, stating: “[W]here a course of conduct is divisible in
time it may give rise to multiple punishment even if the acts are directive to
one objective. [Citation.] If the separation in time afforded defendants
an opportunity to reflect and to renew their intent before committing the next
crime, a new and separate crime is committed.â€
(People v. Louie,
“A trial court’s express or implied determination that two crimes
were separate, involving separate objectives, must be upheld on appeal if
supported by substantial evidence.†(
618.) “We review the trial court’s
findings ‘in a light most favorable to the respondent and presume in support of
the order the existence of every fact the trier could reasonably deduce from
the evidence. [Citation.]’ [Citation.]â€
(People v. Green (1996) 50 Cal.App.4th 1076, 1085.)
Count 3 – False Imprisonment
As
indicated above, appellant contends the acts underlying his false imprisonment conviction
were part and parcel of the same conduct underlying his count 2 conviction of
infliction of corporal injury upon a cohabitant. He bases this contention, in turn, on the
claim that he committed the acts underlying his false imprisonment conviction
during the initial episode in the bedroom—before he left the room and went to
the kitchen—during which he assaulted Rios.
The court, however, made an express
finding that appellant committed the acts underlying the false imprisonment
conviction during the second episode
in the bedroom, and that appellant could be sentenced consecutively for this
“separate act.†The People agree, asserting
that “The trial court can base its section 654 decision on any of the facts
adduced [at] trial ….†Thus, the People
argue, appellant committed the offense of false imprisonment after he “had had
the opportunity to reflect and renew his intent after the commission of count
two,†and therefore imposition of sentence on both counts 2 and 3 was not
barred by section 654.
Appellant bases his argument that
the relevant acts of false imprisonment, for section 654 purposes, occurred not
during the second episode in the bedroom, but in the first, on the fact that,
at trial, the prosecution’s theory of appellant’s guilt, as presented by the
prosecutor in closing argument, was that the false imprisonment occurred during
the first episode.
title="">[3] In our
view, appellant is correct.
People
v. Siko (1988) 45 Cal.3d 820 (Siko)
is instructive. The issue in that case
was whether the defendant was properly subjected to separate punishment for a
lewd and lascivious conduct conviction based on a single incident that also
provided the basis for his convictions of forcible rape and sodomy. In arguing that multiple punishment did not
run afoul of section 654, the People pointed to evidence purporting to
demonstrate that the defendant committed lewd acts other than the rape and
sodomy. Our Supreme Court rejected this
claim and found that the sentence had to be stayed in accordance with section
654, reasoning that “[t]here is no showing that the lewd-conduct count was
understood in this fashion at trial. Indeed, a review of the record demonstrates
the contrary.†(Siko, at p. 826.) The court
noted that “the charging instrument and the verdict both identify the lewd
conduct as consisting of the rape and the sodomy rather than any other
act. Nor did anything in the
prosecutor’s closing argument or in the court’s instructions suggest any
different emphasis.†(
Similarly, in People v. Bradley (2003) 111 Cal.App.4th 765, 770 (
of robbery and attempted murder. The
latter conviction was based on the prosecution’s theory that the defendant was
guilty as an aider and abettor in that the crime was a natural and probable consequence
of the robbery. In concluding that
multiple punishment was barred under section 654, the court reasoned: “In this case, the jury could have been
offered the opportunity to find appellant indeed entertained a specific intent
to attempt the robbery victim’s murder.
But presumably recognizing this was not a viable option, the prosecutor
elected not to submit that possibility to the jury. So the jurors obviously made no such
finding. Instead the jurors predicated
appellant’s guilt of the attempted murder count solely on the theory the prosecution
tendered, a theory only requiring appellant to entertain a single
objective─to rob that victim.
[¶] In our view, the trial court
cannot countermand the jury and make the contrary finding appellant in fact
at p. 770.)
In People v. McCoy (2012) 208 Cal.App.4th 1333, upon which the People
rely, the court summarized the applicable rule as follows: “[A] trial court may base its decision under
section 654 on any of the facts that
are in evidence at trial, without regard to the verdicts,†but only “in the
absence of some circumstance ‘foreclosing’ its sentencing discretion (as in
Here, given the prosecutor’s
closing argument, and the absence of any contrary indications in the record, it
is evident it was understood by the jury that the charge of false imprisonment
was based on appellant’s conduct during the first episode in the bedroom. As in Bradley,
the sentencing court “cannot countermand the jury and make the contrary finding
….†(Bradley,
supra, 111 Cal.App.4th at p. 770.) Here, the court did exactly that, accepting
the prosecutor’s argument and finding that appellant’s conduct during the
second bedroom episode constituted a “separate act†for which the sentence “should
run consecutively.†And as the People do
not dispute, the acts that constituted the false imprisonment in the first
episode were the same acts as those underlying the count 2 conviction of
infliction of corporal injury on a cohabitant.
count 3 false imprisonment and the accompanying firearm use enhancement
violated section 654. Under these
circumstances, the proper
appellate response is to “‘stay the sentence on the lesser offenses while
permitting execution of the greater offense consistent with the intent of the
sentencing court.’†(
1547, 1560.) Accordingly, we will stay
execution of sentence on count 3 and the accompanying enhancement.
Count 7 – Criminal Threats
As
indicated above, Rios testified she understood appellant’s threats to be
directed at both her and her children. In
closing argument, the prosecutor argued, “Count 7 is [section] 422 criminal
threats…. [T]his is the threatening to
kill her. This is the threatening to
hurt her kids.†The court found: “Count 7 is a separate act and just as
egregious [as the count 3 false imprisonment].
Threatening children is … despicable conduct, this Court feels, to get
someone to do their wishes. Again, this
should run consecutively ….â€
As best we can determine, appellant
argues that the court found appellant threatened to harm Rios’s children, but that
the evidence does not support this finding.
The evidence, appellant contends, supports the finding that appellant threatened
Rios only. And because the evidence thus shows the
threat was made “during the first act of domestic violence to a
appellant argues further, imposition of sentence on count 7 violated section
654. We disagree.
First, we reject appellant’s
reading of the court’s remarks as a finding that appellant’s threat was
directed at Rios’s children but not at Rios.
Although the court made reference only to appellant “threatening [to
hurt Rios’s] children,†Rios testified she understood the threats to be directed
at both her and her children, and the prosecutor argued that appellant
threatened both Rios and her children. Nothing
in the court’s remarks preclude a finding, and we interpret the court’s remarks,
as including an implied finding that appellant threatened to harm Rios as well
as her children during the first episode in the bedroom.
Further, we reject appellant’s contention
that section 654 precludes sentence on count 7 because that offense “related to
the continuous course of domestic violence against a single victim.†The court reasonably could have found (1) that
appellant committed multiple volitional acts during the first episode in the
bedroom, some of which—such as striking Rios—formed the basis of appellant’s
conviction of infliction of corporal injury upon Rios, and some of which—such
as appellant’s statement to Rios that he “knew who he could pay to do something
to [her]â€â€”constituted criminal threats in violation of section 422, and (2) that
between these acts appellant had time to reflect. (Cf. People v. Trotter (1992) 7 Cal.App.4th 363, 368
[section 654 did not preclude punishment for two assault counts based on two
gunshots fired within one minute of each other].) Therefore, section 654 did not bar the
imposition of a consecutive term on count 7.
Count 8 – Assault
With a Firearm
The court found as follows: “After entering the bedroom the second time,
defendant forced the victim onto the bed showing the victim the firearm again
as alleged in Count 8. This is also a
separate act and should run consecutively.â€
Appellant argues that the evidence
shows that in committing all the offenses in the instant case, including the
count 8 offense—the assault with a firearm during the second episode in the
bedroom—he acted with a “single objective and intent,†viz., “domestic violence.†Therefore, he argues, imposition of sentence
on count 8 violated section 654. We
disagree.
As with appellant’s criminal
threats, the count 8 assault was one of a series of volitional acts, separated
by time, giving appellant time to reflect.
Thus, however the intent and objective for such acts is characterized,
section 654 does not bar punishment on count 8.
Therefore, the court did not err in imposing a consecutive sentence on that
count.
DISPOSITION
Appellant’s sentence is modified to stay the term of
imprisonment on his conviction of false imprisonment and the accompanying
firearm use enhancement, the stay to become permanent upon appellant’s
completion of the sentence imposed on his conviction of infliction of corporal
injury on a cohabitant. As modified, the
judgment is affirmed. The trial court is
directed to prepare an amended abstract of judgment reflecting this
modification and to forward a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation.
name="_ftn1" title="">* Before
Levy, Acting P.J., Gomes, J., and Detjen, J.
name="_ftn2" title="">[1] All
statutory references are to the Penal Code.
