Opinion
H050371 H050616
02-20-2024
THE PEOPLE, Plaintiff and Respondent, v. VICTORIA CASTANEDA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C2110572)
LIE, J.
Appellant Victoria Castaneda burned her boyfriend's daughter with scalding shower water and instructed the girl and her sister to lie about what had happened. Castaneda was subsequently convicted of inflicting corporal injury upon a child (Pen. Code, § 273d, subd. (a)), willful harm or injury to a child (§ 273a, subd. (a)), mayhem (§ 203), and two counts of witness dissuasion (§ 136.1, subd. (b)(1)) and was sentenced to a determinate term of 13 years in prison. On appeal, Castaneda argues that the trial court violated section 654 when it imposed multiple punishment for both child abuse counts and both witness dissuasion counts. We conclude that the trial court erred by imposing multiple punishment for the child abuse counts, but the separate sentences for the two counts of witness dissuasion do not violate section 654. We modify the judgment and affirm.
Unspecified statutory references are to the Penal Code.
I. BACKGROUND
A. The Operative Information
In February 2022, the Santa Clara County District Attorney charged Castaneda by first amended information with torture (§ 206; count 1), inflicting corporal injury upon a child (§ 273d, subd. (a); count 2), willful harm or injury to a child (§ 273a, subd. (a); count 3), mayhem (§ 203; count 4), and two counts of witness dissuasion (§ 136.1, subd. (b)(1); counts 5 [victim M.D.] &6 [victim V.D.]). As to counts 2 and 3, the information alleged that Castaneda personally inflicted great bodily injury on the victim (§§ 1203, subd. (e)(3), 12022.7, subd. (a)).
B. The Evidence Adduced at Trial
In June 2021, Castaneda was alone in her house with seven-year-old M.D. and M.D.'s six-year-old sister V.D., whose father was in a relationship with Castaneda. Castaneda was angry at M.D.: she pulled M.D.'s hair and made M.D. run up and down the stairs as a punishment.
Castaneda then made M.D. shower in scalding water. M.D. knew the shower water was too hot before she got in and told Castaneda, but Castaneda told M.D. that she did not care. When M.D. got in, she started yelling and crying that it was too hot, but Castaneda repeated that she did not care and pushed M.D. to keep her from getting out. M.D. tried to escape multiple times and attempted to open the shower door, but each time Castaneda stopped her from leaving. At one point, Castaneda seized the shower head and sprayed water directly onto M.D. V.D., coming into the bathroom to wash her hands, saw Castaneda turn the tap, burning M.D. as M.D. screamed in the shower.
When Castaneda had M.D. come out, V.D. could see that M.D.'s skin was burned. In the living room, Castaneda told M.D. and V.D. to lie. She told M.D. to say that M.D. started the shower herself. She told V.D. to say that Castaneda was "dancing" and not paying attention to M.D. She also told V.D. to say that M.D. took a lot of hot baths and that M.D. had "put the water hot by herself."
Castaneda testified that M.D. had started the shower when Castaneda was not in the bathroom, and she did not notice anything was wrong until M.D. started to get dressed.
M.D. suffered second degree and third degree burns on 30 to 40 percent of her body, requiring multiple surgeries, a feeding tube, and daily pain medication during her hospitalization. The extent of the burn injuries required M.D. to undergo physical therapy.
C. The Verdict and Sentencing
The jury acquitted Castaneda of torture (count 1) but found her guilty of inflicting corporal injury upon a child (count 2), willful harm or injury to a child (count 3), mayhem (count 4), and dissuasion of witnesses (counts 5 &6), and further found true the great bodily injury enhancements as to counts 2 and 3.
Castaneda waived her right to a jury trial on aggravating factors alleged in the information. The trial court found the following true beyond a reasonable doubt: the crime involved great violence, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)); the victim involved was particularly vulnerable (id., rule 4.421(a)(3)); the crime involved the threatening of witnesses or preventing or dissuading witnesses from testifying or otherwise interfering with the judicial process (id., rule 4.421(a)(6)), that Castaneda took advantage of a position of trust or confidence to commit the offense (id., rule 4.421(a)(11)), and that Castaneda had engaged in violent conduct that indicates a serious danger to society (id., rule 4.421(b)(1)).
The trial court sentenced Castaneda to an aggravated term of six years for the infliction of corporal injury (count 2) with an additional three years for the great bodily injury enhancement under section 12022.7, subdivision (a), and two full consecutive midterm sentences of two years for witness dissuasion (counts 5 &6) under section 1170.15, for an aggregate term of 13 years in prison. The court further imposed a concurrent midterm of four years for willful injury to a child (count 3) with an additional three years for the great bodily injury enhancement under section 12022.7, subdivision (a), and imposed but stayed under section 654 a midterm of four years for mayhem (count 4). Castaneda timely appealed.
D. The Postjudgment Award of Restitution
In November 2022, the trial court awarded a stipulated amount of $6,373.18 in victim restitution to M.D. and V.D.'s aunt. Castaneda timely appealed from the restitution order.
This court ordered Castaneda's appeal from her judgment of conviction and her appeal from the postjudgment restitution award to be considered together. Castaneda advances no arguments on appeal about the restitution award.
II. DISCUSSION
Section 654, subdivision (a) prohibits multiple punishment for "[a]n act or omission that is punishable in different ways by different provisions of [the] law." Thus, by its plain language, section 654 operates to bar multiple punishment for violations of different provisions of the law: "section 654 does not bar multiple punishment for violations of the same provision of law." (People v. Correa (2012) 54 Cal.4th 331, 344 (Correa).) But when an act or omission is punishable under two different provisions of the law, we consider if the crimes nonetheless comprise a "single physical act" or an indivisible course of conduct pursued with "a single' "intent and objective." '" (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) "If so, the defendant may not be punished more than once for that act." (Ibid.) "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." (People v. Brents (2012) 53 Cal.4th 599, 618 (Brents).)
On appeal, Castaneda argues that multiple punishment for the two child abuse convictions (inflicting corporal injury upon a child and willful harm or injury to a child) and the two witness dissuasion convictions violate section 654. As the two child abuse convictions were undisputedly for the same act (forcing M.D. to take the hot shower) punished by two different provisions of law, we agree that multiple punishment for counts 2 and 3 violate section 654. However, because the witness dissuasion convictions were for multiple violations of the same criminal statute, section 654 is inapplicable and imposition of two sentences was proper.
Although Castaneda did not argue in the trial court that the sentences for counts 2 and 3 violated section 654, this argument may be raised for the first time on appeal as error under section 654 results in an unauthorized sentence. (Brents, supra, 53 Cal.4th at p. 618.)
As to counts 2 (inflicting corporal injury upon a child, § 273d, subd. (a)) and 3 (willful harm or injury to a child, § 273a, subd. (a)), the prosecutor argued and the trial court instructed that the basis for both counts 2 and 3 were Castaneda's "acts involving [M.D.] taking a shower on June 10, 2021." The Attorney General thus appropriately concedes that Castaneda's convictions for counts 2 and 3 were for the same act or the same course of conduct-the shower incident-and that no substantial evidence supports the trial court's implied conclusion that Castaneda had multiple intents or objectives, other than to inflict harm on M.D. (Corpening, supra, 2 Cal.5th at p. 311; Brents, supra, 53 Cal.4th at p. 618 [trial court's express or implied determination that crimes are separate involving separate objectives reviewed for substantial evidence].) As there is no evidence that Castaneda's course of conduct was divisible, imposition of multiple punishment for the two convictions therefore violated section 654. (Corpening, at p. 311.)
Castaneda argues that we should remand the matter for a full resentencing in which the trial court may elect to stay the sentence for either count 2 or count 3. (See People v. Buycks (2018) 5 Cal.5th 857, 893 (Buycks).) Because the sentencing triad for each of these two counts is the same, however (see §§ 273a, subd. (a) [imprisonment in state prison for two, four, or six years], 273d, subd. (a) [same]), we agree with the Attorney General that remand is unnecessary. Even assuming the trial court's decision to sentence Castaneda to a concurrent middle term for count 3 instead of an aggravated term could be interpreted as a determination that count 3 represented a less serious offense, the record reflects no possibility that the trial court would elect to both abandon its designation of count 2 as the principal term and retain count 3's middle term treatment despite the several aggravating factors Castaneda does not dispute on appeal. The trial court imposed the sentence here after the Legislature amended section 654 to delete the requirement that the court impose sentence on the count that "provides for the longest potential term of imprisonment." (§ 654, former subd. (a); cf. People v. Jones (2022) 79 Cal.App.5th 37, 46 [full resentencing necessary when application of newly amended versions of §§ 1170, subd. (b) &654 would require the trial court at minimum to reconsider which triad term to impose and which sentences to stay].) Its designation of count 2 as the principal term thus reflects a considered choice under current law, a choice we have no basis to question.
The trial court here selected the aggravated term of six years for count 2 and the midterm of four years for count 3, running the sentence for count 3 concurrent to the sentence for count 2. The trial court also imposed a midterm of four years for count 4 (mayhem), which it stayed under section 654 after finding that count 4 "encompasses the same facts and circumstances" as count 2. The trial court's sentencing decisions reflect its intent to impose an aggravated term of six years on Castaneda for the principal term, with the terms for counts 3 and 4 to have no practical impact-whether stayed under section 654 or served concurrently-on the duration of Castaneda's incarceration. Remanding the matter for resentencing would therefore be an idle act that would consume" 'ever-more-scarce judicial resources.'" (People v. Ledbetter (2014) 222 Cal.App.4th 896, 904; see also People v. Thompson (1989) 209 Cal.App.3d 1075, 1086 [" '[w]e are unwilling to remand the case merely to require the trial court to adhere to a formal ritual, with the same result' "]; People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [futility and expense of holding a new sentencing hearing that would not change actual prison time militates against remand].)
Moreover, because our determination of error does not result in the striking of any operational part of Castaneda's sentence, it does not require the trial court to exercise its sentencing discretion" 'in light of [that] changed circumstance[]'" announced on appeal. (See Buycks, supra, 5 Cal.5th at p. 893 [requiring full resentencing "when part of a sentence is stricken on review"].)
We therefore order the judgment modified to reflect that the sentence for count 3 is stayed under section 654. (§ 1260; see, e.g., People v. Nault (2021) 72 Cal.App.5th 1144, 1149 [directing trial court to stay sentence under § 654].)
B. The Two Witness Dissuasion Counts
Castaneda was convicted of two counts of witness dissuasion (§ 136.1, subd. (b)(1))-count 5 for her acts in trying to prevent or dissuade M.D. from reporting her to law enforcement, and count 6 for her acts in trying to prevent or dissuade V.D. from reporting her to law enforcement. The trial court sentenced Castaneda to consecutive two-year terms for both convictions after expressly determining that section 654 was inapplicable because the two counts were for "two separate acts of dissuading a victim." Castaneda argues on appeal that her sentences violate section 654 because she committed the acts during either a single act or an indivisible course of conduct-when she spoke to M.D. and V.D. in the living room of the house. Although not cited by Castaneda or the Attorney General in their briefs, this argument has been foreclosed by the California Supreme Court in Correa, supra, 54 Cal.4th 331, which held that section 654 is inapplicable to multiple violations of the same criminal statute.
In Correa, our high court considered whether section 654 operated to bar multiple punishment for seven counts of being in possession of a firearm after the defendant was found with seven guns. (Correa, supra, 54 Cal.4th at p. 334.) Correa held that section 654 itself made clear that its proscription against multiple punishment was for an" 'act or omission that is punishable in different ways by different provisions of law.'" (Id. at p. 341; § 654, subd. (a).) Thus, Correa concluded that "section 654 does not bar multiple punishment for violations of the same provision of law." (Correa, at p. 344.)In its decision, Correa cited to People v. Harrison (1989) 48 Cal.3d 321 with approval. (Correa, at p. 342.) In Harrison, the California Supreme Court held that section 654 did not operate to bar multiple punishment for a defendant's convictions for multiple counts of forcible sexual penetration, reasoning that "no special treatment is to be afforded to a defendant under section 654 simply because he chose to repeat, rather than to diversify or alternate, his many crimes." (Harrison, at p. 337.) Applying section 654 to bar multiple punishment for violations of the same criminal statute would "undermine[] the purpose of section 654, which is to ensure that the defendant's punishment will be commensurate with his culpability. [Citation.] Generally, a person who violates the same statute multiple times is more culpable than a person who violates the statute only once." (People v. Sanders (2012) 55 Cal.4th 731, 742.)
At oral argument, Castaneda's counsel suggested that Correa did not overrule People v. Davey (2005) 133 Cal.App.4th 384, which held that a single act of indecent exposure constitutes only one crime for the purposes of sentencing, or People v. Hall (2000) 83 Cal.App.4th 1084, where the Court of Appeal stayed sentences on two counts of exhibiting a firearm. Correa, however, discussed both Davey and Hall as representing the "great confusion" wrought by a footnote in Neal v. State of California (1960) 55 Cal.2d 11. (Correa, supra, 54 Cal.4th at pp. 343-344.) Correa then expressly repudiated the Neal footnote, concluding that "section 654 does not bar multiple punishment for violations of the same provision of law." (Id. at p. 344.) Correa's disapproval of Davey and Hall strikes us as unambiguous.
Here, Castaneda was convicted of two counts of witness dissuasion for violations of the same statute-section 136.1, subdivision (b)(1)-as to two different victims. By its plain terms, section 654 is inapplicable to her convictions because they were for multiple violations of the same provision of law. (Correa, supra, 54 Cal.4th at p. 344.) We note that Castaneda advances no argument that the conversation with M.D. and V.D. amounted to only a single violation of section 136.1, subdivision (b)(1) or that her multiple convictions were otherwise improper. "The proper unit of prosecution [for a criminal offense] is a question of legislative intent that arises when interpreting any criminal statute. [Citations.] Answering a unit of prosecution question requires courts to determine when the 'actus reus prohibited by the statute-the gravamen of the offense- has been committed more than once.'" (People v. Whitmer (2014) 59 Cal.4th 733, 744 (conc. opn. of Liu, J.); see also People v. Wilson (2015) 234 Cal.App.4th 193, 201 [§ 422 prohibits multiple convictions based on multiple criminal threats made toward a single victim during a single encounter].)
Although the issue of whether two convictions were proper under these circumstances is not presently before us, the record reflects that Castaneda directed each sister to tell a different lie, even though she did so in a single conversation. The specifics of Castaneda's dissuasion as to each child supplied the trial court with substantial evidence that her intent with each child was separate and distinct. The trial court could legitimately infer that Castaneda's instruction that M.D. take responsibility for burning herself was to shift blame to M.D. for her injuries, whereas Castaneda's instruction to V.D. was to supply Castaneda with both an alibi and an explanation for Castaneda's ostensible failure of supervision. Thus, even if we were to assume that section 654 applied to the two witness dissuasion convictions, the trial court did not err in imposing sentences for counts 5 and 6.
III. DISPOSITION
The judgment is modified by staying the sentence for count 3 under Penal Code section 654. The clerk of the superior court is directed to forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
WE CONCUR: GROVER, ACTING P.J., BROMBERG, J.