P. v. Vasquez
Filed 12/17/12
P. v. Vasquez CA2/8
NOT TO BE PUBLISHED
IN THE 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and
Respondent,
v.
FRANCISCO JAVIER VASQUEZ,
Defendant and
Appellant.
B234565
(Los Angeles County
Super. Ct. No. BA360792)
APPEAL from a judgment of the Superior Court of
Bachner, Judge. Affirmed.
Gideon Margolis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General,
Steve D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for
Plaintiff and Respondent.
* * * * * * *
Francisco Javier Vasquez
appeals from a judgment sentencing him to a term of 29 years for
to four concurrent terms of life, plus 20 years for four attempted murders of a
single civilian victim. Appellant
contends (1) the imposition of four concurrent life sentences for the
attempted murder convictions violates the Penal Code section 654 prohibition of
multiple punishments for a single act, and (2) his sentence constitutes
and federal law.
name="_ftnref1" title="">[1]
We affirm.
FACTS
On August 23, 2009, at approximately 2:00
a.m.,
the civilian victim was driving eastbound on 33rd Street near Compton Avenue in Los Angeles. Appellant backed his vehicle out of a
driveway in front of the victim, temporarily blocking his path. After passing appellant’s vehicle and driving
for about a block, the victim noticed appellant’s vehicle following him
closely. At 41st Street and Compton Avenue, appellant fired a gunshot
at the victim. Four blocks later,
appellant fired a second shot at the victim.
Seven blocks after that, appellant fired a third shot at the
victim.
The victim then drove to the Newton police station about 10
blocks away and parked in the employee parking lot. Appellant stopped at the parking lot
entrance. Two police officers
standing in the lot saw appellant fire approximately five gunshots at the
victim. Appellant appeared to fire at
the officer standing in front of the victim.
The two officers jumped into a patrol car, chased appellant, and
arrested him a few blocks away. Bullet
holes were found in the driver’s side door, in one of the seats, and in the
taillight of the civilian victim’s vehicle.
Appellant was convicted of four counts of attempted
willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a);
counts 3, 7, 9 & 11); four counts of shooting
at an occupied motor vehicle (§ 246; counts 4, 8, 10 & 12), and one
count of assault on a peace officer with a semiautomatic firearm (§ 245, subd.
(d)(2); count 5).
name="_ftnref2" title="">[2] The jury found true the special allegation
that appellant personally and intentionally discharged a firearm in the
attempted murder counts and in the assault on a peace officer. Appellant was sentenced to an upper term of 9
years with a 20-year firearm enhancement for the assault on a peace officer
(count 5), followed by a consecutive term of four concurrent sentences of life,
plus 20 years for the four attempts to kill the victim (counts 3, 7, 9 &
11). The trial court stayed sentencing
on the remaining counts pursuant to section 654 (counts 4, 8, 10 &
12).
DISCUSSION
1. Section 654
Appellant contends that the trial court should have
stayed three of the four concurrent life sentences imposed for the four
attempted murder counts pursuant to section 654 because all four convictions
arose from acts furthering the single objective of attempting to kill the
victim.
title="">
contends that because each conviction resulted from a separate volitional act
divisible by time and intent, the sentencing court properly denied defendant’s
request to stay the sentences. A section
654 analysis requires us to consider whether appellant fired each gunshot in
furtherance of a single intent and objective, or multiple intents and
objectives. (See People v. Latimer (1993) 5 Cal.4th 1203, 1208 (Latimer).)
name="_ftnref4" title="">[4]
The trial court denied
appellant’s stay request, finding that the four attempted murder counts “were
independent of each other . . . not merely incidental to each other. They might
have had similar objectives, but they were separate objectives.†The court further reasoned that the shootings
were at different locations and the appellant had time to contemplate his
actions in between each of the shootings.
We review the facts surrounding a section 654
challenge under the substantial evidence standard of review. “‘The determination of whether there was more
than one objective is a factual determination, which will not be reversed on
appeal unless unsupported by the evidence presented at trial.’ [Citations.]
‘[T]he law gives the trial court broad latitude in making the
determination.’ [Citation.]†(People
v. Wynn (2010) 184 Cal.App.4th 1210, 1215.)
However, when the facts are undisputed, the applicability of the statute
to facts – the dimension and meaning of the statute – is a question of
law. (People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5 (
Section 654 applies when a defendant is punished
multiple times for a single “act or omission.â€
(People v. Siko (1988) 45
Cal.3d 820, 823.) “‘Whether a course of
criminal conduct is divisible and gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the actor. 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.]†(Latimer,
supra, 5 Cal.4th at
p. 1208.) Section 654 protects
defendants against multiple punishments, not multiple convictions. (People
v. Harrison (1989) 48 Cal.3d 321, 335.)
When section 654 prohibits multiple punishment, the trial court
must stay execution of sentence on the convictions that implicate multiple
punishment. (Correa, supra, 54 Cal.4th
at p. 337.)
Facts very similar to the present case were at issue
in People v. Trotter (1992)
7 Cal.App.4th 363 (Trotter). There, the defendant stole a taxi and was
subsequently chased by a police cruiser on the freeway. While being chased, defendant fired a gunshot
at the officer’s vehicle. About a minute
later, defendant fired a second shot at the officer’s vehicle. Seconds after the second shot, he fired a
third shot at the officer’s vehicle.
Defendant was convicted of three counts of assault on a peace officer
with a firearm, one for each gunshot. (
court held that the trial court correctly punished defendant separately for two
of the three assaults.
name="_ftnref6" title="">[6]
that the gunshots constituted separate and distinct acts. Defendant had time prior to each shot to
“reflect and consider his next action.â€
(Id. at p. 368.)
As in Trotter,
here substantial evidence supported multiple sentences for the separate
attempted murder counts. Appellant fired
at least four shots while chasing the victim.
The shots were each separated in distance by several blocks. One purpose of section 654 “is to insure that
a defendant’s punishment will be commensurate with his culpability.†(Perez,
supra, 23 Cal.3d at p. 551.)
Appellant had the opportunity to reflect upon his actions between each
shot; thus, each shot increased appellant’s culpability and indicated a
separate intent to kill the victim. (Cf.
People v. Surdi (1995) 35 Cal.App.4th
685, 689.) Appellant “‘should . . . not
be rewarded where, instead of taking advantage of an opportunity to walk away
from the victim, he voluntarily resumed his . . . behavior.’ [Citation.]â€
(Trotter, supra, 7 Cal.App.4th at p. 368.)
As in Trotter, each shot
appellant fired “required a separate trigger pull,†and was not “spontaneous or
uncontrollable.†(Ibid.)
Our Supreme Court decided
shotguns in defendant’s closet.
Defendant was convicted of seven counts of being a felon in possession
of a firearm and was sentenced to seven consecutive terms for those
offenses. (Id. at pp. 334-335.) Our
Supreme Court concluded that “section 654 does not bar multiple punishment for
violations of the same provision of law.â€
(Id. at p. 344.) Based on section 654’s plain language and
legislative history, the court concluded that it was never intended to apply to
a single act constituting multiple violations of the same criminal statute. “By its terms section 654 applies only to
‘[a]n act or omission that is punishable in different ways by
.’†(Correa,
supra, at p. 341.)
We do not apply
clause of the
States Constitution barred applying this new rule to the defendant in that
case. (Correa, supra, 54 Cal.4th at pp. 344-345.) Because appellant’s crimes took place before
clause would bar us from applying this new rule.
actions constitute separate criminal acts, as opposed to one act subject to
multiple sentencing, it is unnecessary for us to apply Correa’s new rule to our facts.
In short, because appellant engaged in separate
attempts to murder the victim that can be distinguished by time and place, we
agree with the trial court that separate punishments are appropriate.
2. Cruel and
Unusual Punishment
The question of whether a punishment is
unconstitutionally cruel or unusual is a question of law. (People
v. Martinez (1999) 76 Cal.App.4th 489, 496.) However, we view the underlying facts in the
light most favorable to the judgment. (
1374, 1390.)
Appellant was convicted of four counts of attempted
murder, one count of assault on a peace officer with a semiautomatic firearm,
and four counts of shooting at an
occupied motor vehicle. He contends
that his sentence of 29 years consecutive to four concurrent terms of life,
plus 20 years constitutes cruel and unusual punishment under the United States
and California Constitutions. Appellant
contends that his crimes were not vicious or atrocious as a matter of gravity
in that he did not “target a particular individual or a group of
individuals.†He also contends that
while the crimes at issue in this case are “obviously serious,†they “cannot be
considered to be of the more ‘vicious’ or ‘atrocious’ variety that would
justify what may well be a life sentence in this case.†We disagree.
The California Constitution
prohibits cruel or unusual punishment.
Constitution if “it is so disproportionate to the crime for which it is
inflicted that it shocks the conscience and offends fundamental notions of
human dignity.†(In re Lynch (1972) 8 Cal.3d 410, 424.) Defendant must overcome a large burden in
order to show his sentence is disproportionate.
(People v. Weddle (1991)
1 Cal.App.4th 1190, 1197.) In order
to determine a sentence’s disproportionality, we must examine the nature of the
offense and the offender. (
478.) We are permitted to, but need not,
compare the offense and its punishment with punishments imposed for the same
offense in other jurisdictions. (
Here, appellant fired at least eight
gunshots in the direction of other people, including at least one police
officer, and endangered many lives in the residential neighborhood where these
crimes took place. The Legislature has
determined that willful, deliberate, and premeditated attempted murder carries
a life with the possibility of parole sentence.
(§ 664, subd. (a).)
Appellant was convicted of four of these counts, and the trial court
properly exercised its discretion to run them concurrently and to run the
assault against a peace officer charge consecutively. (See § 669, subd. (a).) His sentence was not cruel and unusual under
the California Constitution. (See, e.g.,
People v. Riva (2003) 112 Cal.App.4th
981, 986 [sentence of 30 years to life held not cruel and unusual for shooting
at an occupied vehicle and causing great bodily injury]; People v. Villegas (2001) 92 Cal.App.4th 1217, 1221-1222 [sentence
of 40 years to life held not cruel and unusual for attempted murder, mayhem,
and assault with a firearm by a defendant who was 17 at the time of the
crimes]; People v. Morales (1992) 5
Cal.App.4th 917, 930 [life sentence for one count of attempted murder held not
cruel and unusual].)
The
Constitution counsels a similar analysis.
examined according to a narrow proportionality principle. (People
v. Meeks (2004) 123 Cal.App.4th 695, 707.)
That principle bars imposition of a punishment that is grossly
disproportionate to the severity of the crime.
(People v. Cartwright (1995)
39 Cal.App.4th 1123, 1135.) A
proportionality analysis considers three criteria, including (1) the gravity of
the offense and the harshness of the penalty; (2) the sentence imposed on
other criminals in the same jurisdiction; and (3) the sentences imposed for
commission of the same crime in other jurisdictions. “‘[I]t is only in the rare case where a
comparison of the crime committed and the sentence imposed leads to an
inference of gross disproportionality that the second and third criteria come
into play.’ [Citation.]†(People
v. Haller (2009) 174 Cal.App.4th 1080, 1088.)
As discussed above, appellant
engaged in serious and deadly crimes that could have resulted in the loss of
several lives. The fact that no one was
actually injured does not diminish the seriousness of the offense. (See People
v. Morales, supra, 5 Cal.App.4th at p. 930.) Given the nature of appellant’s offenses, his
sentence does not qualify as cruel and unusual punishment under the United
States Constitution. (See, e.g.,
Amendment claim of defendant with no prior felony record who was convicted of
possessing 672 grams of cocaine and received life sentence without the
possibility of parole]; Rummel v. Estelle
(1980) 445 U.S. 263, 285 [rejecting Eighth Amendment challenge to life
sentence with the possibility of parole for obtaining $120.75 under false
pretenses, where defendant had prior convictions for passing a forged check and
fraudulent credit card use]; Plascencia
v. Alameida (9th Cir. 2006) 467 F.3d 1190, 1193 [holding a consecutive
25-year-to-life sentence on a gun enhancement not cruel
and unusual].)
DISPOSITION
The judgment is affirmed.
FLIER, J.
We
concur:
BIGELOW, P. J.
GRIMES, J.
name="_ftn1" title="">[1]
further statutory references are to the Penal Code.
1 and 2 were dismissed prior to trial.
There is no count 6 in the amended charges.
