Opinion
B225299
08-24-2011
THE PEOPLE, Plaintiff and Respondent, v. WILMER ALEXIS ALVARADO, Defendant and Appellant.
Alan C. Stern, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA358401)
APPEAL from a judgment of the Superior Court of Los Angeles County, Rand S. Rubin, Judge. Affirmed.
Alan C. Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Wilmer Alexis Alvarado appeals from the judgment entered following his convictions by jury on count 1 - attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187) with personal and intentional discharge of a firearm (Pen. Code, § 12022.53, subd. (c)) and personal and intentional discharge of a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)), count 2 - assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) with personal use of a firearm (Pen. Code, § 12022.5, subd. (a)), personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)), and personal infliction of great bodily injury involving domestic violence (Pen. Code, § 12022.7, subd. (e)), count 3 - assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) with personal use of a firearm (Pen. Code, § 12022.5, subd. (a)), count 4 - kidnapping (Pen. Code, § 207, subd. (a)), two counts of criminal threats (Pen. Code, § 422; counts 5 & 6), and count 7 - assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)). The court sentenced appellant to prison for 23 years, plus 32 years to life. We affirm the judgment.
FACTUAL SUMMARY
1. Counts 1 Through 3.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that Mario Raygoza and Claudia A. (Claudia) dated, but their relationship ended in October 2008. Appellant later became Claudia's boyfriend. However, appellant became violent with Claudia and accused her of infidelity. The parties stipulated that in December 2008, she completed a restraining order against appellant and, in January 2009, the order was filed. At some point, Claudia told appellant about her prior relationship with Raygoza.
In January 2009, appellant told Raygoza that appellant did not want him bothering Claudia, and appellant threatened to kill him if he continued talking to her. On June 2, 2009, appellant approached Raygoza, pointed a gun at his chest, and asked if he remembered appellant. Raygoza began moving and appellant shot him in the arm (counts 1 & 2). As appellant left, he said "18th forever[.]" Claudia, who was nearby, heard the shot and began walking away. However, appellant approached her, hit her shoulder, and used a gun to hit her head (count 3).
2. Counts 4 Through 7.
On August 9, 2009, prior to 10:10 p.m., Nestor Quintana, a taxi van driver, picked up appellant in the van. Appellant told Quintana to take him to appellant's house on First and Westmoreland. About 10:10 p.m., Claudia was near Temple and Westlake when she called appellant and asked for a ride home. Claudia was still dating appellant.
Quintana drove appellant to Claudia's location. Claudia testified appellant asked her in a nonaggressive manner to enter the van. Claudia voluntarily entered it. However, Claudia told police that appellant was aggressive and ordered her into the van, and that she entered it because of appellant's past domestic violence. She also testified she only entered the van because she was afraid.
As soon as Claudia entered the van, appellant began hitting her face with his fist, and beating her. This caused her to drop her cell phone. From the moment appellant began beating her, she told him many times that she wanted to exit the van. Quintana drove away (count 4) with Claudia and appellant. Quintana was afraid because appellant had indicated he was from the 18th Street gang and because appellant might have assaulted Quintana.
Quintana testified he indicated to an investigator that appellant threatened Claudia and told her to wait until they got home, where appellant was going to beat her. A district attorney's investigator testified Quintana told him that at some point Quintana heard appellant tell Claudia that appellant was going to take her home and kill her. Quintana testified he originally was supposed to take appellant home, but appellant changed his mind and told Quintana to take appellant to Westlake and Sixth. Quintana also testified he was about to stop at Westlake "because that's where they were going," but appellant then told Quintana to take appellant elsewhere.
Appellant hit Claudia on her arms and legs. Quintana stopped the van, but appellant ordered him to keep driving. Claudia wanted to exit, but Quintana kept driving. Appellant continued beating Claudia's face. Claudia told appellant that she was going to call the police, but appellant laughed. Appellant climbed on top of Claudia's legs and continued beating her (count 7). Appellant accused Claudia of infidelity and threatened to kill her and her mother.
In light of the prosecutor's jury argument, we assume count 7 was based on appellant's entire ongoing beating of Claudia.
Claudia picked up her cell phone and called 911. She dropped the cell phone again, but the 911 operator recorded subsequent statements made in the van. The transcript of the 911 call reflects that after Claudia indicated in the van that she had called the police, appellant ordered Quintana to "Head to the beach - Malibu." Claudia testified appellant told Quintana that appellant wanted Quintana to drive to the beach because appellant was going to kill Claudia there. Claudia also testified she told police that appellant told Quintana to drive to Santa Monica Beach so appellant could kill her and dump her body there. The transcript of the call reflects Claudia indicating in the van that Quintana stopped it at Sixth and Park View and that appellant was going to kill her there.
Quintana testified that after he saw lights from a police car and a helicopter, and heard sirens, he stopped the van at Park View and Wilshire. Quintana testified that appellant and Claudia already had stopped arguing by the time Quintana stopped at Park View and Wilshire. However, he also testified he told an investigator that the arguing and beating by appellant continued from the time Quintana picked up Claudia to the time Quintana stopped and police came.
After Quintana stopped the van, Claudia asked Quintana to open the door so she could exit. Appellant suggested Claudia's mother was nearby. Claudia told Quintana not to go to Claudia's house. After Claudia indicated she would take another cab home, appellant repeatedly told her that she was going to die (count 5) and suggested she demeaned men. Quintana exited the van and told appellant and Claudia to leave. Appellant did not want to leave and threatened Quintana (count 6) because Quintana would not drive appellant further. Police arrived at Sixth and Park View and saw appellant, Quintana, and Claudia in the van. Appellant exited the van and police told him to stop. Appellant walked away quickly but police detained him. Claudia was crying, her nose was bleeding profusely, and her lip was bleeding and swollen. The next day, her eyes became discolored as a result of the assault.
In light of the prosecutor's jury argument, we assume count 5 was based on the above statements appellant made (1) to Quintana about driving to the beach so appellant could kill Claudia, and (2) to Claudia about the fact she was going to die.
ISSUE
Appellant claims Penal Code section 654 barred multiple punishment on counts 4, 5, and 7.
DISCUSSION
Penal Code Section 654 Did Not Bar Multiple Punishment on Count 4, 5, or 7.
Appellant's sentence included a prison term as to each of counts 4, 5, and 7. Appellant claims Penal Code section 654 barred multiple punishment on those counts because he had the single criminal objective of taking Claudia to the beach to kill her or continue assaulting her. We disagree.
Penal Code section 654, as interpreted by our Supreme Court, prohibits multiple punishment for offenses committed during an indivisible transaction. Whether a course of conduct is indivisible depends on the intent and objective of the actor. (People v. Perez (1979) 23 Cal.3d 545, 551.) If all offenses are incident to one objective, the defendant may not be punished for more than one. However, if the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the defendant may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (Cf. People v. Bradley (2003) 111 Cal.App.4th 765, 769, fn. 3.) The purpose of Penal Code section 654 is to insure that a defendant's punishment is commensurate with culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)
Finally, whether Penal Code section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. Its findings will not be reversed on appeal if there is any substantial evidence to support them. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) This includes the trial court's implied findings. (People v. Nguyen (1988) 204 Cal.App.3d 181, 190.)
In the present case, there is no dispute appellant kidnapped Claudia (count 4), committed criminal threats against her (count 5), and feloniously assaulted her (count 7), i.e., assaulted her by means likely to produce great bodily injury. Moreover, we assume without deciding that Claudia involuntarily entered the van and appellant initially kidnapped her (count 4) when she entered the van and Quintana drove it away with her and appellant inside.
There was substantial evidence as follows. As to count 4 (kidnapping) and count 5 (criminal threats), as soon as Claudia entered the van, appellant began feloniously assaulting her by continually beating her; therefore, when appellant initially kidnapped Claudia he was feloniously assaulting her. After Claudia entered the van, appellant asked Quintana to take appellant to, inter alia, Westlake and Sixth. In sum, appellant initially kidnapped Claudia (count 4) simply with the criminal intent and objective of feloniously assaulting her somewhere in downtown Los Angeles because of her alleged infidelity.
Appellant asserts that, even before Claudia called 911, appellant was kidnapping her to take her to the beach. However, the burden is on appellant to demonstrate error (People v. Garcia (1987) 195 Cal.App.3d 191, 198) and he has failed to demonstrate his assertion.
For example, appellant, citing to pages 151 and 225 of the reporter's transcript of the trial, suggests that those pages, among others, demonstrate that (1) appellant, during Claudia's 911 call, merely reiterated an intent to take her to the beach to kill or assault her, and (2) he formulated that intent before her call. However, fairly read, page 151 reflects, in pertinent part, that (1) the prosecutor asked Claudia whether she heard appellant tell the driver (Quintana) where to go at "any" point while she was in the van, (2) she replied yes, and (3) she indicated appellant said the name of a beach. Page 225 contains similar testimony by Quintana concerning whether at "any" point when Quintana was in the van, appellant told him to drive to the beach.
On the other hand, Quintana indicated to an investigator that appellant threatened to beat Claudia when they got home. Quintana originally was supposed to take appellant home, but at some point after Claudia entered the van, appellant changed his mind and told Quintana to take appellant to Westlake and Sixth. Quintana testified he was about to stop at Westlake "because that's where they were going" but appellant then told Quintana to take appellant elsewhere. We note that, according to the transcript of the recorded 911 call, it was only after Claudia indicated she had called the police that appellant ordered Quintana to "Head to the beach - Malibu." There was no other reference to a beach in the transcript before it reflects she indicated in the van that she had called the police. Quintana effectively told a district attorney's investigator that at some point appellant told Claudia that appellant was going to take her home and kill her. For all the record reflects, appellant may have said this only after Claudia announced she had called 911.
An appellate court reviewing a trial court's determination of a Penal Code section 654 issue must view the evidence in the light most favorable to the respondent and presume in support of the sentencing order the existence of every fact the trier reasonably could deduce from the evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.) We conclude there was substantial evidence appellant initially kidnapped Claudia (count 4) simply with the criminal intent and objective of feloniously assaulting her in downtown Los Angeles because of her alleged infidelity.
There was also substantial evidence as follows. It was only after Claudia announced she had called 911 that appellant committed criminal threats against her (1) by telling Quintana in Claudia's presence that appellant wanted him to drive to the beach because appellant was going to kill Claudia there and (2) by repeatedly telling her that she was going to die. That is, after Claudia announced she had called 911, appellant made criminal threats to her (count 5) with the separate criminal intents and objectives (1) to frighten her (cf. People v. Solis (2001) 90 Cal.App.4th 1002, 1022 (Solis)), (2) to retaliate for her reporting (see Pen. Code, § 140) the initial kidnapping (count 4), (3) to retaliate for reporting the felonious assault (count 7) to the extent it preceded her announcement that she had called 911, and (4) to prevent her from further reporting said initial kidnapping and felonious assault (cf. People v. Saffle (1992) 4 Cal.App.4th 434, 440 (Saffle)).Accordingly, there was substantial evidence appellant had independent criminal intents and objectives when committing the offenses at issue in counts 4 and 5; therefore, Penal Code section 654 did not bar multiple punishment on those counts.
Similarly, as to count 5 (criminal threats) and count 7 (felonious assault), there was substantial evidence that appellant committed the felonious assault (count 7) with the criminal intent and objective of feloniously assaulting Claudia because of her alleged infidelity. However, after she announced she had made the 911 call, appellant made criminal threats to her (count 5) with the separate criminal intent and objective to frighten her. (Solis, supra, 90 Cal.App.4th at p. 1022.) Penal Code section 654 did not bar multiple punishment on counts 5 and 7.
Finally, as to count 4 (kidnapping) and count 7 (felonious assault), there was substantial evidence that Quintana stopped (according to Quintana, at Park and Wilshire) once he saw lights from a police car and a helicopter, and heard sirens. Quintana also testified appellant ceased feloniously assaulting Claudia before Quintana stopped and police arrived.
Kidnapping is a continuing offense, and as long as appellant continued to detain Claudia, her kidnapping continued. (People v. Masten (1982) 137 Cal.App.3d 579, 588; Parnell v. Superior Court of Alameda County (1981) 119 Cal.App.3d 392, 407-408.) There was substantial evidence appellant's continued detention of Claudia, and therefore his kidnapping of her, did not end at least until Quintana stopped the van and appellant exited it, leaving Claudia.
Accordingly, there was substantial evidence that appellant's kidnapping of Claudia continued even after appellant's felonious assault of her ceased, e.g., the kidnapping continued, after the van stopped and during the period appellant and Claudia were in the van and appellant was unsuccessfully trying to convince Quintana to drive him from the scene.
In sum, there was substantial evidence that (1) appellant committed the felonious assault upon Claudia (count 7) with the objective of feloniously assaulting her because of her alleged infidelity, (2) that assault ceased and, (3) when it did, appellant no longer had the objective of feloniously assaulting her. However, there was also substantial evidence that the kidnapping (count 4) continued even after the felonious assault ceased, and that appellant's criminal objectives at that time in continuing the kidnapping were (1) to prevent Claudia further reporting the initial kidnapping and earlier felonious assault (cf. Saffle, supra, 4 Cal.App.4th at p. 440) and (2) to prevent appellant's detection and conviction for those crimes (cf. People v. Nichols (1994) 29 Cal.App.4th 1651, 1657-1658). Penal Code section 654 did not bar multiple punishment on counts 4 and 7.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
KLEIN, P. J.
CROSKEY, J.