Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA 306397 George G. Lomeli, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Cesar Marroquin appeals from his conviction of elder abuse, attempted burning of a structure, vandalism, and criminal threats. His only contention on appeal is that the court erroneously denied his request pursuant to Penal Code section 654 to stay his sentence for vandalism. We disagree and affirm.
All undesignated code section references are to the Penal Code.
BACKGROUND
On July 23, 2006, 71-year-old Eloise Ibarra owned and lived in a home in Los Angeles with her son Marroquin, along with renters Roberto Ramirez and Jose Luis Zapata. At approximately 4:00 in the morning, Ibarra, Ramirez, and Zapata all were awakened by the sounds of Marroquin breaking windows on Ibarra’s house, pounding loudly on the front door, screaming obscenities, and cursing at Ibarra. Ibarra got up, told Marroquin to stop his conduct, opened the front door, and let Marroquin in. Once inside, Marroquin continued yelling at Ibarra and pushed her. After Ibarra went out onto the front porch, Marroquin left the house. He returned five to seven minutes later with a can of paint thinner, poured the paint thinner on the living room floor, then held his cell phone near the paint thinner and repeatedly pushed the power button, apparently in an attempt to light the paint thinner, while saying he was going to set fire to the house. Next, he exited the house and began physically fighting with Ibarra, who in attempting to defend herself tore Marroquin’s shirt off. Marroquin took a bottle of barbecue lighter fluid from the porch barbecue and poured lighter fluid on Ibarra’s chest, telling her he was going to burn her, as he rubbed his cell phone against her. Marroquin continued his rampage by breaking more windows, pulling Ibarra’s hair, and slapping her face. He then descended the porch steps into the yard, began to disconnect a garden hose, and told Ibarra that because he could not burn her, he would strangle her with the hose. Ibarra screamed for Ramirez and Zapata to help her. Zapata exited the house and tried to calm Marroquin down. Marroquin dropped the hose and again left, returning a few minutes later with a cigarette lighter. He told Zapata, “‘I’m going to burn this place to the ground’” and repeatedly tried, unsuccessfully, to ignite the lighter, including near places where the porch was wet from lighter fluid. Zapata reentered the house to call the police, and when he returned outside, Marroquin was running down the street. Later, after the police had come and gone, Zapata, while cleaning up, found a cigarette lighter near one of the places where Marroquin had tried to ignite the house. As a result of Marroquin’s attack, Ibarra suffered a scratch below her right eye, a nosebleed, and skin peeling on her chest.
The record is not entirely clear as to whether the crimes occurred on the morning of July 23 or July 24, and whether Marroquin began drinking on July 22 or July 23, but it appears that he began drinking in the afternoon or evening on July 23, 2006, and committed the crimes in the early morning on July 24, 2006.
On November 6, 2006, the Los Angeles County District Attorney filed a four-count information, followed on December 4, 2006, by a five-count amended information charging Marroquin with attempted willful, premeditated murder in violation of sections 664 and 187, subdivision (a) (count 1); abuse of an elder or dependent adult in violation of section 368, subdivision (b)(1) (count 2); attempted burning of a structure in violation of section 455 (count 3); vandalism causing more than $400 in damage in violation of section 594, subdivision (a) (count 4); and criminal threats in violation of section 422 (count 5). The amended information alleged, pursuant to section 12022, subdivision (b)(1), that the crimes charged in counts 1, 2, and 5 had been committed with use of deadly weapons: the lighter fluid for counts 1, 2, and 5, and the garden hose for counts 1 and 2.
On April 23, 2007, Marroquin waived a jury trial, and the court granted the prosecution’s motion to strike the allegation of willful premeditation under count 1. At a court trial in May 2007, the prosecution presented testimony from Ibarra, Zapata, and Ramirez as described above. Counsel stipulated that the cost to repair Ibarra’s broken windows was $720.80. Marroquin testified that he loved Ibarra, had no ill will toward her, and never wanted to hurt her, but that on July 23, 2006, his birthday, he was depressed over having lost his job and over his girlfriend’s failure to celebrate his birthday. He began drinking heavily starting in the afternoon and continuing through the evening. He had little recollection of what followed. In particular, he did not remember trying to set fire to Ibarra or her house or pouring paint thinner or lighter fluid on her or the house, though he remembered seeing the lighter fluid on the barbecue grill and also remembered Ibarra tearing his shirt off. He had a vague recollection of being upset because he thought Ibarra had urged his girlfriend to stay away from him on his birthday.
The court found Marroquin not guilty of count 1, attempted murder, but convicted him of counts 2 through 5 (elder abuse, attempted burning of a structure, vandalism, and criminal threats). The court found that the hose was not used as a dangerous weapon as alleged in count 2, but found true the allegation that Marroquin had used a dangerous weapon, the lighter fluid, in the commission of counts 2 and 5. The court sentenced Marroquin to the mid-term of 3 years plus a one-year enhancement for count 2, elder abuse, plus additional consecutive sentences of 8 months each (one third of the mid-term) for count 3 (attempted burning of a structure) and count 4 (vandalism), for a total prison sentence of 5 years and 4 months. The court imposed but stayed a mid-term sentence of 2 years on count 5 pursuant to section 654 but declined to stay the sentence on count 4 (vandalism). The court imposed various conditions and statutorily mandated fines and fees and credited Marroquin with 476 days in custody. Marroquin timely appealed.
DISCUSSION
Marroquin contends the imposition of a term of eight months each for his convictions of vandalism and of burning a structure violates section 654, because both counts arose from a single, indivisible course of conduct. We disagree.
Section 654, subdivision (a) 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.” Although section 654 literally applies only to multiple punishments arising from multiple statutory violations resulting from the same act or omission, to insure that defendant’s punishment is commensurate with his culpability, cases have extended its protection to situations in which several offenses are committed during an indivisible course of conduct. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Indivisibility is determined by the defendant’s intent and objective. (Ibid.) Thus, “[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[.] [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.) “[C]ases have sometimes found separate objectives when the objectives were either (1) consecutive even if similar or (2) different even if simultaneous. In those cases, multiple punishment was permitted.” (People v. Britt (2004) 32 Cal.4th 944, 952.) The question of indivisibility of conduct and intent is generally a question of fact. (People v. Harrison, supra, 48 Cal.3d at p. 335.) As Marroquin acknowledges, “Review of such a finding is under the substantial evidence test[.]” (See People v. Osband (1996) 13 Cal.4th 622, 730-731.) Under that standard, we presume in support of the court’s finding the existence of every fact the court reasonably could deduce from the evidence, and we must affirm even if the circumstances and evidence would support a contrary finding. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Marroquin maintains that “clearly the evidence in [his] case indicated that there was one course of conduct which involved several offenses, the attempt to burn and the vandalism charges, . . . that were part of an indivisible transaction with one objective, to damage Ibarra’s house[.]” To support his contention, Marroquin cites People v. Perez (1979) 23 Cal.3d 545, 551. But as the Perez court cautioned, intent and objective may not be defined excessively broadly and amorphously. (Id. at pp. 552-553.) Here, the intent to cause damage, like the intent to obtain sexual gratification that the Court rejected in Perez, is too broad and amorphous a description of intent to warrant the application of section 654. (See id. at pp. 552-553.) The offense of attempting to set fire to Ibarra’s house was not a means of breaking her windows, did not facilitate breaking her windows, and was not incidental to breaking her windows. Likewise, the offense of breaking windows was not a means of burning the house, did not directly facilitate that objective, and was not necessarily incidental to it. Marroquin first broke windows and banged and kicked at the front door, but only later, after Ibarra let him into the house and confronted him, did he obtain items with which to burn the house, which supports an inference that he did not have the intent to burn the house when he first was breaking windows. Accordingly, there is substantial evidence to support the court’s finding of separate intents in committing separate offenses—in other words, a divisible course of conduct—and we may not reweigh the evidence or substitute a different judgment for that of the trial court.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, Acting P. J., VOGEL, J.