Filed 8/22/13  P. v. Finch CA3 (unmodified opn.)

NOT TO BE PUBLISHED

 

 

 


 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Shasta)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   CHANE C. FINCH,                           Defendant and Appellant.

C071606   (Super. Ct. No. 11F5308)

 

 

 

 

            A jury convicted defendant Chane C.
Finch of attempted first degree robbery in concert, first degree burglary,
three counts of assault with a firearm, two counts of assault with a deadly
weapon, two counts of false imprisonment by violence, battery causing great
bodily injury, and attempted false imprisonment by violence.  The jury also found true certain firearm
enhancements.  The trial court sentenced
defendant to 13 years eight months in state prison. 

            Defendant now contends the trial
court should have stayed sentence, pursuant to Penal Code section 654, on
certain convictions for false imprisonment, attempted false imprisonment and
assault. 

            We agree the trial court should have
stayed sentence on the convictions for false imprisonment, attempted false
imprisonment, and one of the assaults. 
We will modify the judgment and affirm the judgment as modified.  We will also direct the trial court to amend
and correct the abstract of judgment. 

BACKGROUND

            Lucas Simpson informed Michael
Houchins that he had been disguising himself as a law enforcement officer to
steal drugs.  Michael Johnson was also
present when Simpson made the disclosure. 
Simpson asked Houchins to inform him of easy targets. 

            Houchins subsequently saw 30 pounds
of processed marijuana on the living room floor of Michael High’s home.  High had a medical recommendation for
marijuana and lived alone in a secluded residence in Shasta Lake City. 

            Houchins suggested to Simpson that
High would be a good target.  Simpson
agreed and said Johnson would join them. 
Houchins also told defendant about the plan to steal High’s marijuana,
and defendant agreed to participate. 

            Houchins, Simpson, Johnson and
defendant met at defendant’s house to plan the offense.  They decided Houchins would go to High’s
house first.  Once inside, Houchins would
inform Simpson by cell phone whether it was a good time to conduct the
crime. 

            Simpson and Johnson dressed in
camouflage clothing and handkerchief masks. 
Simpson had a Mini-14 rifle. 
Defendant wore dark clothing and an “attack vest” and armed himself with
a Glock-19 pistol. 

            Defendant and his wife drove in one
car, Simpson and Johnson in another, and Houchins in a third.  Houchins drove ahead of the others and parked
in the driveway of High’s home.  Houchins
went inside, played video games with High and then texted Simpson to start the
crime.  Two of High’s friends, Isabella
Vasquez and Amanda Baxter, were also at High’s home that evening. 

            High and Baxter both had dogs
present, and when the dogs began barking Vasquez and High went to
investigate.  They saw three men in dark
“tactical” clothing, wearing masks or handkerchiefs and carrying flashlights.  Someone struck High in the face with the butt
of a rifle or shotgun, and the offenders beat High after he fell to the
ground.  High heard someone repeat the
word “search warrant.”  He also heard someone
say, “Do something about this dog or I’ll fucking shoot it.”  Vasquez grabbed the dog and held on to
it. 

            The man with the rifle ordered
Baxter to the ground.  Baxter tried to
run but something hit her hard on the head and she fell to the ground next to
Vasquez. 

            High did not believe the offenders
were law enforcement officers.  He stood
up and struck the one closest to him.  As
High wrestled the offender to the ground, the one with the rifle said, “Let him
go, or I’m going to fucking shoot you.” 
When High noticed that the offender he was fighting had a sheathed
knife, High kicked at him to get some room between them.  All three of the offenders then “pummeled”
High and forced him to the ground.  One
offender dragged High to Vasquez and Baxter in front of his house, where the
offenders continued to beat High “for what seemed like minutes.” 

            An offender put a zip tie around
High’s left wrist.  High broke free and
chased one of them.  As High closed in,
the offender said “You’re going to get fucking shot,” and fired a gun two
times.  Neither shot hit High.  High tackled the offender and kicked him
twice in the face.  Hearing footsteps,
High grabbed the offender by the throat and used him as a shield.  Another offender struck High in the back of
the head and shoulder with a two-by-four or four-by-four.  High released the offender he was holding,
wrested control of the board and raised it over his head.  The offender who attacked him with the board
ran down the driveway. 

            High returned to his house and saw
the third offender running down the driveway. 
High tried to follow but realized he was bleeding.  He had a knife wound that resulted in a
collapsed lung, bleeding in the abdomen and an injured spleen.  Vasquez and Baxter took High inside and
called the police. 

            A jury convicted defendant of
attempted first degree robbery in concert (Pen. Code, §§ 211/664, 213,
subd. (a)(1)(A) -- count 1 [victim High]);href="#_ftn1" name="_ftnref1" title="">>[1] first
degree burglary (§ 459 -- count 2 [victim High]); three counts of assault
with a firearm (§ 245, subd. (a)(2) -- count 3 [victim High], count 5
[victim Baxter] and count 10 [victim Vasquez]); two counts of assault with a
deadly weapon (§ 245, subd. (a)(1) -- count 4 [victim High with a knife]
and count 9 [victim High with a wooden board]); two counts of false
imprisonment by violence (§ 236 -- count 6 [victim Baxter] and count 7
[victim Vasquez]); battery causing great bodily injury (§ 243, subd. (d)
-- count 8 [victim High]); and attempted false imprisonment by violence
(§§ 237/664 -- count 11 [victim High]). 
The jury also found true certain firearm enhancement allegations
(§ 12022, subd. (a)(1)). 

            Pursuant to section 654, the trial
court stayed sentence on count 1 (the attempted robbery of High) and count 8
(the battery causing serious bodily injury against High), and imposed
consecutive terms on the other counts, sentencing defendant to an aggregate of
13 years eight months in state prison. 

DISCUSSION

            Defendant contends the trial court
should have stayed sentence, pursuant to Penal Code section 654, on the
convictions for false imprisonment of Baxter and Vasquez (counts 6 and 7),
attempted false imprisonment of High (count 11), and assault on High (counts 3
[firearm], 4 [knife] and 9 [board]). 

            Specifically, he claims (A) the
assault and false imprisonment offenses committed against Vasquez were part of
an indivisible course of conduct, and hence the trial court should have stayed
sentence on the conviction for false imprisonment because it carried a lesser
punishment; (B) the same is true for the assault and false imprisonment
offenses committed against Baxter; and (C) the assault and attempted false
imprisonment offenses committed against High were incidental to the burglary
and should also have been stayed.

            In relevant part, section 654
provides:  “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.”  (§ 654, subd.
(a).)

            “[I]t is well settled that section
654 applies not only where there was but one act in the ordinary sense, but
also where there was a course of conduct which violated more than one statute
but nevertheless constituted an indivisible transaction.  [Citation.] 
Whether a course of conduct is indivisible depends upon the intent and
objective of the actor.  [Citation.]  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.]”  (People
v. Perez (1979) 23 Cal.3d 545, 551.) 
“It is defendant’s intent and objective, not the temporal proximity of
his offenses, which determine whether the transaction is indivisible.  [Citations.]” 
(People v. Harrison (1989)
48 Cal.3d 321, 335.)  “A trial
court’s implied finding that a defendant harbored a separate intent and
objective for each offense will be upheld on appeal if it is supported by
substantial evidence.  [Citation.]”  (People
v. Blake (1998) 68 Cal.App.4th 509, 512.)

A

            Defendant argues the assault and
false imprisonment offenses committed against Vasquez were part of an
indivisible course of conduct, and hence the trial court should have stayed
sentence on the conviction for false imprisonment because it carried a lesser
punishment. 

            Vasquez was outside with High when
they first saw the offenders.  The
offenders claimed to be police and ordered them to the ground.  An offender threatened to shoot Baxter’s dog
and Vasquez restrained it.  When the
offender with the rifle went into the house and returned outside with Baxter,
Vasquez and Baxter apparently remained with the offender until he ran away.

            The assault with a firearm committed
against Vasquez was the means used to control Vasquez and falsely imprison
her.  The Attorney General argues there were
two different points where the rifleman controlled her, with two different
purported objectives:  (1) when the
rifleman initially ordered her to the ground, the objective was to promote the
theft of marijuana; and (2) when the rifleman held Vasquez next to Baxter after
Vasquez had restrained the dog, the objective was to prevent Vasquez from going
to the aid of High.  But we conclude the
assault and false imprisonment offenses had the same objective, to control the
victim in an effort to steal marijuana. 

            Accordingly, the sentence on the
offense with the lesser penalty must be stayed. 
(People v. Landis (1996)
51 Cal.App.4th 1247, 1255.)  False
imprisonment by violence is punishable by a county jail term of 16 months or
two or three years (§§ 18, subd. (a), 237, subd. (a), 1170, subd. (h)),
while assault with a firearm is punishable by a state prison term of two, three
or four years (§ 245, subd. (a)(2)). 
We will stay the sentence for false imprisonment of Vasquez (count 7)
pursuant to section 654.

B

            Defendant makes the same argument
regarding the assault and false imprisonment offenses against Baxter:  that those offenses were part of an
indivisible course of conduct, and hence the trial court should have stayed
sentence on the conviction for false imprisonment because it carried a lesser
punishment. 

            When the offender with the rifle
left Vasquez and went inside the house, he ordered Baxter to the ground.  She ran outside, but an offender struck her
in the head and she fell next to Vasquez. 
She apparently remained with the rifleman until he ran away.

            The assault and false imprisonment
of Baxter had the same objective, to control the victim in an effort to steal
marijuana.  We will stay the sentence for
false imprisonment of Baxter (count 6) pursuant to section 654.

C

            Defendant further contends the trial
court should have stayed sentence, pursuant to section 654, on the convictions
for assault against High (counts 3, 4, and 9) and attempted false imprisonment
of High (count 11), because those offenses were incidental to the burglary
(count 2). 

            Regarding the attempted false
imprisonment conviction, the offenders attempted to falsely imprison High in an
effort to burglarize his home.  Thus, the
attempted false imprisonment was incidental to the burglary.  Because attempted false imprisonment is
punished less severely than first degree burglary (§§ 664, subd. (a), 237,
461, subd. (a)), we will stay the sentence for attempted false imprisonment
(count 11) pursuant to section 654.

            Turning to the assault convictions,
defendant was convicted for assault with a firearm (count 3), assault with a
deadly weapon (a knife, count 4), and assault with a deadly weapon (a wooden
board, count 9). 

            In determining whether multiple
crimes are part of a single purpose or plan, “the courts analyze the evidence
to determine whether all the offenses committed were part of the defendant's
original plan or some were an afterthought or acts committed in response to
unforeseen developments.”  (>People v. Vidaurri (1980) 103 Cal.App.3d
450, 465 (Vidaurri).)  For example, section 654 did not prevent
separate punishments for burglary and assault when the defendant in >Vidaurri shoplifted some items from a
store then swung a knife at a security guard who confronted him in the parking
lot.  (Id. at pp. 455, 465-466.)

            Here, we conclude the assault with a
firearm was incidental to the burglary. 
Early in the attack, an offender struck High in the face with a rifle
and threatened to shoot him in an effort to control High as part of the plan to
steal marijuana.  Because the assault was
intended to facilitate the general plan of the burglary, we will stay the
sentence for assault with a firearm (count 3) pursuant to section 654.

            But there is evidence that the
assault with a knife (count 4), and the assault with a wooden board (count 9),
were not part of the original plan to steal marijuana but instead were in
response to an unforeseen development: 
High’s surprising and tenacious resistance to the offenders.

            High’s resistance to control by the
offenders resulted in a prolonged pummeling, during which the trial court could
reasonably conclude that High was stabbed.href="#_ftn2" name="_ftnref2" title="">>[2]  And
his subsequent resistance led to an offender striking him with the wooden
board.  As in Vidaurri, the trial court could impose separate punishments for the
burglary and the assaults committed in response to unforeseen resistance.

D

            The trial court imposed a
consecutive one-year term on count 3, consecutive eight-month terms on counts 6
and 7, and a consecutive four-month term on count 11.  Staying sentence on those four counts reduces
the total sentence from 13 years eight months to 11 years.  We will modify the sentence accordingly. 

            We have also found two errors in the
abstract of judgment which require correction. 
The abstract of judgment incorrectly indicates section 644 next to count
1’s section number.  The correct section
number is 664.  In addition, the crime
description for count 1 should be first degree attempted residential
robbery, not burglary. 

DISPOSITION

            The judgment is modified to stay the
sentences on counts 3, 6, 7 and 11, resulting in an aggregate sentence of 11
years in state prison.  The judgment is
affirmed as modified.  The trial court is
directed to amend the abstract of judgment to reflect this modification, and to correct the abstract of
judgment to reflect section 664 next to count 1’s section number, and to
describe the crime on count 1 as first degree attempted residential
robbery.  The trial court is further directed
to send a certified copy of the amended and corrected abstract of judgment to
the Department of Corrections and Rehabilitation.

 

 

 

 

                                                                                                         MAURO                       , J.

 

 

We concur:

 

 

                     NICHOLSON                      , Acting P. J.

 

 

                     DUARTE                             , J.