Opinion
H024365.
10-22-2003
THE PEOPLE, Plaintiff and Respondent, v. SAUL GARCIA ALDANA, Defendant and Appellant.
Defendant Saul Garcia Aldana was convicted at a court trial of six felonies including attempted manslaughter, first degree burglary, and making terrorist threats, and the enhancements that he used a deadly weapon and inflicted great bodily injury in connection with these crimes were found true. He was sentenced to 10 years and two months in prison. He questions the sufficiency of the evidence of first degree burglary and the propriety of a consecutive eight-month sentence on appeal.
FACTS
Griselda Machado and defendant lived together for 15 years and had three children together but in February 2001 she started having an affair with Jorge Rosales. She eventually told defendant about the affair and asked him to move out. He complied, and lived in his truck, stayed with his sister sometimes, and with Machado other times. Two weeks into the separation, on March 21, 2001, he returned to the house where Machado was in bed with Rosales. Rosales heard defendant enter the house. Rosales gathered his clothes, and fled through a bathroom window. Machado was startled and scared because defendant was not supposed to be there. He yelled in Spanish, "now Im here to kill you" and leaned into her and began punching her with a closed fist. He punched her three times while continuing to yell, "I came to kill you." Machado screamed for help and defendant left the room and went into the kitchen. She could hear drawers opening and closing and the clang of utensils. She got out of bed and locked the bedroom door with a padlock, dialed 911, then ran through the bathroom and a bedroom rented to a roommate to get outside. 911 logs showed a hangup call at 10:48 p.m.
Evidence admitted at trial included the preliminary hearing transcript, police reports, exhibits, stipulations, and testimony of live witnesses.
Machados trial testimony was inconsistent in certain respects with her prior testimony at the preliminary hearing and her statement to Watsonville Police Officer Jose Barrera. At the preliminary hearing and to Barrera, Machado said she was asleep in her bedroom alone when defendant entered the house. Also, Machado testified that her sexual contacts with Rosales occurred in her home while Rosales, who had ended the affair, testified they occurred in a hotel on the outskirts of Watsonville.
As Machado ran down the street, defendant was running behind her with a knife in his hand. He grabbed her by the hair, pulled her head back, said "Im sorry, but Im going to have to kill you," raised his right hand and stabbed her beside the left eye and on the left side of the chest. Machado grabbed the blade. It bent and broke. She fell to the ground and defendant stabbed her in the back with what was left of the blade. Defendant yelled, "die bitch" as Machado got up, ran, and flagged down a motorist. The police arrived seconds later. Defendant was standing by a telephone booth.
Rosales testified that although he had been having an affair with Machado for about two weeks, he was not in the house when defendant arrived but was at work delivering pizza. When he visited Machado in the hospital, she told him that she had been lying down in her bedroom when defendant opened the door, announced he was going to kill her, retrieved a knife from the kitchen, and chased her down the street repeatedly stabbing her. Rosales testified that Machado tried to convince him to lie to the police and say they were together when defendant arrived because it would help the defense. However, Machado testified that when Rosales drove her to the police station, he said they should say they had not been having a sexual relationship and she agreed. Rosales denied this accusation. Machado also stated that she called her friend Josefina Frutos to ask Rosales to bring her clothes, and at that time, she told Frutos that Rosales had been with her when defendant entered the bedroom.
Defendants and Machados nine-year-old son told police he saw defendant kick the bedroom door while holding a knife, chase Machado out of the house, and stab her in the back, face and hand.
Defendant told police that he threatened to kill Machado once when he entered the bedroom and again when they were outside. He described how he stabbed Machado in the back, but denied stabbing her anywhere else. He testified at trial that he went to the house to deliver Machados weekly allowance. Since the separation two weeks earlier, he was having "problems going on in [his] mind" concerning Machado, his family, and his children. On the day of the incident, defendant had left his second job early because he had a headache. He had four beers at his sisters house before he left for Machados. It took half an hour to get there, and en route, he drank a six-pack of beer. Then he stopped at a gas station near the house and drank four or five more cans of beer. He left the car at the gas station and walked to the house. When he entered, he heard a mans voice in the bedroom. He broke down the locked door and saw the man fleeing. He denied any recollection of the subsequent attack. The next thing he knew, Machado was on the ground. He went to the telephone to call emergency, and the police arrived.
Defendant was interviewed by Dr. Jose Arturo Silva. Silva testified defendant said he went into the bedroom and saw someone he could not identify in the room. He went to the kitchen and picked up a knife which he took back to the bedroom. Defendant moved toward Machado who ran and he pursued her with the knife in his hand. He remembered some contact with Machado, but not stabbing or using the knife to harm her.
Silva diagnosed defendant with major depressive illness, impulse control disorder (dissociation), and alcohol intoxication. At the time of the offense, defendant was depressed to the level of needing hospitalization. Depression at that level may result in cognitive defects, defective judgment, and problems with concentration. Dissociation affects how people think and remember things and perceptions. "[T]hose functions tend to be split, compartmentalized. They are not fused, integrated in the way that people usually experience that." Silva stated that when defendant found Machado sexually involved with another man, "[h]e was experiencing rage, narcissistic injury, and . . . insane jealousy." Finally, alcohol intoxication caused difficulties with judgment, insight, cognition, memory, and the ability to reflect on acts and thoughts one has at the time of intoxication. Defendant also had cognitive deficits which "may be related to his history of numerous hits to the head, . . ." Cognitive deficits lead to "difficulties dealing with sequences of information with sequences of semantic structures, like from one sentence to another sentence to another sentence, and with the ability to be able to thread those semantic statements together to make a cohesive portion of information."
Defendants blood alcohol was 0.13 percent. A drug screen was negative although defendant testified that he had been using "crank" (methamphetamine) daily for about two weeks after a friend of his at work noticed he was depressed and gave him some to try. Photographs taken by the police in Machados bedroom show the bed "neatly made." Binoculars were found on the front seat of defendants vehicle. The prosecutor described clothes Machado was wearing in a photograph taken of her after the attack as panties, a bra, and a top. Machado testified she was wearing a nightgown with straps and socks while having sex and Rosales was in his underwear but did not have pants on.
Defendant was charged with attempted murder (Pen. Code, §§ 664, 187, count 1); aggravated mayhem (§ 205, count 2); two counts of willfully inflicting corporal injury upon a cohabitant (§ 273.5, subd. (a), counts 3 and 5); first degree burglary (§ 459, count 4); and two counts of making a criminal threat (§ 422, counts 6 and 7). Counts 1, 2, and 3 also alleged defendant personally used a deadly and dangerous weapon and personally inflicted great bodily injury (§§ 12022, subd. (b)(1), 12022.7, subd. (e)). Count 5 alleged defendant had been convicted of a violation of section 273.5, subdivision (a), within the past seven years (§ 273.5, subd. (e)), and count 7 alleged that defendant personally used a deadly and dangerous weapon. Count 2 was later dismissed on defendants section 995 motion.
Further statutory references are to the Penal Code unless otherwise stated.
Defendant was found guilty at a court trial of the lesser included offense of attempted voluntary manslaughter in count 1 (§§ 664, 192, subd. (a)) and of all other counts and allegations. Defendant was sentenced to five years and six months on count 1, and three years and one year consecutive on the enhancements. On counts 3, 4, and 5, the court imposed and stayed sentences of nine years, four years and four years respectively. Two years were imposed for count 6 and ordered to run concurrently. As to count 7, the court imposed eight months consecutive to count 1 for a 10 year, two month total. This appeal ensued.
ISSUES ON APPEAL
Defendant contends that insufficient evidence was presented to convict him of first degree burglary and that the consecutive sentence on count 7 should have been stayed pursuant to section 654.
SUFFICIENCY OF THE EVIDENCE
Defendant asserts that no evidence was presented that showed he had formed any felonious intent before entering either the house or the bedroom. "Therefore, as conceded by the prosecution, the conviction should be reversed."
The People dispute that the prosecution conceded a lack of evidence to support the burglary count. The People state, and we agree, this claim "is based on a fundamental misrepresentation of the record. Specifically, the prosecutors statement during closing arguments regarding the lack of evidence establishing a burglary was explicitly conditioned on the court finding that [defendants] violent conduct was triggered by his post-entry surprise at discovering Machado in the bedroom with Rosales."
The prosecutor stated, "Now clearly the issue is the mental state, and one part of that is whether or not Jorge Rosales was there. So Judge, what Im going to argue about now is assuming Jorge Rosales was there, assuming the Court found that to be true, and assuming that the Court found that the defendant did not know Jorge Rosales was going to be there, so those are two favorable facts for the defendant. Assuming that for a moment, lets analyze what crimes were committed. [¶] Well, of the crimes charged, the easiest one to deal with is the burglary. There would [not] be the burglary. He had no intent that the People can prove to do anything when he entered that home. So we can throw that one out." (Italics added.) However, the crux of the prosecutors argument was that defendant had a plan to kill Machado, left work early, went to her home late at night, had his binoculars, and did not see Rosales because he was not there. "Immediately upon being caught, almost unsolicited, he says, I caught her in bed with another man, but theyre going to deny it. Now why would he say that? Its because its part of his plan. . . . [¶] In the interview he also talks about how angry he was. 15 years of his life wasted. He describes himself as going to Freedom Fuel and hiding there. . . . So he goes to the home. Drinks his liquid courage. Goes to take care of his problems once and for all. Hes had enough of her cheating, her lying, calling the police on him. . . . Enough of her kicking him out of his home. Enough of her infidelity. Enough of her not bringing the son to boxing. [¶] So he goes in the home, planning to kill her, and that changes the one crime that I discounted earlier when he crosses the threshold of that door and he has that plan, hes committed burglary."
To convict of first degree burglary, the trier of fact must find that a person entered an inhabited dwelling house, that at the time of entry, the person had the specific intent to commit grand or petit theft or to commit a felony therein. (§ 459.) In reviewing the sufficiency of the evidence, "`the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the [conclusion of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139.) Substantial evidence in a criminal case is "evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
There is substantial evidence in the record of defendants felonious intent. Defendant testified that he was going to Machados house to give her money, but he went late at night, parked the car away from the house, probably spied out the premises with the binoculars he had in the car and left on the front seat, and then went to the house quietly on foot. He did not knock on the door or otherwise seek admittance from Machado, he just went inside. He testified that he heard a mans voice in the bedroom when he got into the house. Defendant had a history of beating Machado and Machado had a history of infidelity. They separated because she was having an affair. The bedroom door was locked. Defendant did not let the occupants of the bedroom know he was there. Instead, he kicked the door in, told Machado he was there to kill her, punched her three times, then went to the kitchen and got the knife. As she fled for her life, he chased her, told her again he was going to kill her, and stabbed her three times. "[A] defendants entry into a bedroom within a single-family house with the requisite intent can support a burglary conviction if that intent was formed only after the defendants entry into the house." (People v. Sparks (2002) 28 Cal.4th 71, 73.) In this case, we are satisfied that defendant had the requisite intent when he entered the house and definitely had the requisite intent when he entered the bedroom.
CONSECUTIVE SENTENCE
Defendant next contends that the eight-month sentence imposed on count 7 for his threat to kill Machado when he was chasing her with the knife should have been stayed pursuant to section 654. Defendant states that "the criminal threat uttered in count 7 was made in the course of the attempted voluntary manslaughter and had no distinct objective. Chronologically, the threat was uttered during the course of an assault immediately preceding a stabbing. Indeed, the course of conduct from entrance into the bedroom until the police arrived was about 3 minutes. Necessarily, the threat was part of the criminal objective of intending to kill [Machado]. . . . [¶] . . . [Defendant] had no separate objective other than killing [Machado] when he stated, `Im sorry but you are going to die now because he stabbed her immediately. Had [defendant] wanted to frighten [Machado] even more than she was already, he would not have stabbed her immediately after uttering the threat."
Section 654 states, "[a]n 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. . . ." "The purpose of section 654 is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense . . . ." (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) However, "multiple punishment is proper if the evidence discloses a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other. Our Supreme Court has defined the proper test as follows: `Whether a course of criminal conduct is divisible and therefore 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.]" (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1345.)
The test for determining " `[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of 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. Latimer (1993) 5 Cal.4th 1203, 1208.) A trial courts implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if supported by substantial evidence. (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
At sentencing, the prosecution argued that defendants objective in threatening Machado in her bedroom before he went to the kitchen to get a knife was to terrorize her. This was a different objective from his desire to kill her. However, that threat was charged in count 6. The court imposed the consecutive sentence on count 7. The conduct supporting count 7 was defendants statement "Im sorry, but Im going to have to kill you," which Machado told Detective Jess Ojeda that defendant made "[j]ust prior to the initial stabbing." The trial court did not make any findings whether defendant had a sole or multiple objectives for count 7. The prosecution did not argue to the trial court as the People now argue on appeal that "[a] criminal who is not content with killing his or her victims but instead insists on also terrorizing them in their final living moments demonstrates an increased criminal culpability that demands the availability of a separate additional sentence."
The People urge us to apply People v. Solis (2001) 90 Cal.App.4th 1002 to this issue. There, the defendant claimed his sentence violated section 654 because his criminal threats to commit arson and the actual arson itself were incident to the same intent and objective. (People v. Solis, supra, 90 Cal.App.4th at p. 1022.) The court rejected this claim finding that the two crimes "had distinct objectives: in making the terrorist threats, the defendant intended to frighten whereas in committing arson an hour later the defendant intended to burn." (Ibid.)
We do not find Soliss situation and defendants to be similar. Solis gave his victim an hour to suffer "sustained fear" (§ 422) as a result of the threat, whereas defendants threat was made in the act of grabbing Machados hair and raising the knife to stab her. While the earlier threat in the bedroom before defendant went to the kitchen to get the knife supports the inference that it was made to frighten Machado, defendants acts in regard to count 7constitute an indivisible course of conduct. He chased Machado with a knife, grabbed her hair and pulled her head back, made the statement and immediately stabbed her. This sequence does not support the inference that he had separate objectives at the time the threat was made. Sentence on count 7 must be stayed.
DISPOSITION
The judgment is modified to stay the term imposed for the terrorist threat in count 7 pursuant to Penal Code section 654. In all other respects, the judgment is affirmed.
WE CONCUR: Rushing, P.J. and Elia, J.