Opinion
F077451
09-04-2019
Kendall D. Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue and Kathleen A. McKenna, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CR06358)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. (Retired judge of the Merced Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Kendall D. Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Snauffer, J.
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A jury convicted appellant Santiago Armendariz III of making criminal threats (Pen. Code, §422, subd. (a); count 1) and false imprisonment (§ 236; count 3). In a separate proceeding, the court found true a serious felony enhancement (§ 667, subd. (a)) and allegations that Armendariz had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code.
The jury acquitted Armendariz of dissuading a witness (§ 136.1, subd. (b)(1)) and it found not true a personal use of a deadly weapon enhancement (§ 12022, subd. (b)(1)) in counts 1 and 3.
On appeal, Armendariz contends: (1) the matter must be remanded for the court to consider striking his serious felony enhancement; and (2) the court violated section 654 when it imposed a concurrent term on count 3. We find merit in Armendariz's second contention, modify the judgment accordingly, and affirm as modified.
FACTS
Armendariz began living at the home of his girlfriend, Guadalupe M. (victim), in August 2017. On October 17, 2017, the victim was sleeping in her bedroom when she was awakened by the sound of her phone being broken on a dresser and Armendariz yelling several times, threatening to kill her. The victim went to the kitchen and Armendariz followed her, slammed her head against a wall, and choked her until she almost passed out. Armendariz also broke her glasses and he again threatened her. Armendariz then pinned the victim on a couch and punched her on her stomach and thighs. After the victim curled herself into a ball, Armendariz cut her hair and threatened to slice her face and shave her head.
Armendariz eventually took the victim's debit card and left. However, he returned about 10 minutes later, grabbed her small dog, and held it over the garbage disposal as the disposal was running. The victim pushed Armendariz, grabbed the dog, and was able to escape out of the house.
Armendariz's prior strike conviction was based on his 2000 conviction for the forcible rape (§ 261, subd. (a)(2)) of a 12-year-old girl. In the same proceedings, he was also convicted of sexual battery (§ 243.4). A great bodily injury enhancement (§ 12022.8) and an age enhancement (§ 667.9, subd. (b)) were found true as to his rape conviction.
On April 23, 2018, defense counsel filed a Romero motion asking the court to strike Armendariz's 2000 rape conviction for purposes of the Three Strikes allegation.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.
On April 24, 2018, at Armendariz's sentencing hearing, defense counsel argued that the court should strike the prior rape conviction because the underlying offense occurred in 1999 when Armendariz was only 18 years old, he had not reoffended until he committed the instant offenses, he performed well on parole, and he had been a productive citizen since being released from prison.
In denying the Romero motion, the court stated:
"The court in considering whether or not it should strike Mr. Armendariz's prior conviction[] [notes that] [t]he prior conviction is a very serious violent crime. It was forcible rape of a very young girl, and it clearly indicates violence and an effort for gratification and an effort to control women's behavior. So it's a very, very serious offense.
"The fact that there were no intervening crimes [was because] he was in prison. He was sentenced to 19 years, and he serves 14.
"I looked at his criminal history, and his juvenile record is significant dating back to 1995 involving batteries, burglaries, possession of nunchaku—nunchucks, drugs, and then the eventual conviction when he turned 18.
"So his juvenile record is significant and serious and continued in its seriousness and violent behavior until it culminated in a rape of a 12-year-old.
"Then he was out of prison. And while on parole, his parole officer advises that he failed to attend his sex offender treatment program, had a negative attitude, although he was able to maintain employment and stayed off drugs.
"So I look at the current offense, which involved multiple threats to kill [the victim]. [¶] ... [¶] [T]here was evidence of two prior assaults where she had a significant black eye before this. And the current charges were based upon an incident where there were multiple threats to kill her because of suspected infidelity.
"There was testimony about a significant ongoing physical assault upon her person. And it all indicates a character trait of committing acts of violence against women in order to control their behavior or obtain the gratification or results he wants.
"And as far as evaluating his character and prospects of becoming law abiding based with all this information, I can't find that his character is of the type that I would accept an invitation to strike the strike.
"Taking all those factors into consideration, the invitation to strike the strike is declined."
After hearing argument, the court sentenced Armendariz to an aggregate 11-year term, the doubled aggravated term of six years on Armendariz's criminal threats conviction, a five-year serious felony enhancement, and a concurrent, doubled aggravated term of six years on his false imprisonment conviction. In imposing a doubled aggravated term on Amendariz's false imprisonment conviction, the court found that his attitude towards women was "shocking." Nevertheless, it imposed a concurrent term on that conviction because it found that both of Armendariz's offenses occurred during a single period of violent behavior and that both offenses had the singular objective of controlling the victim's behavior.
Defense counsel had argued that the court should impose concurrent terms on Armendariz's two convictions because section 654 applied to them.
DISCUSSION
Remand Is Not Necessary
Armendariz contends that based on a change in the law that allows the court to strike serious felony enhancements, the matter must be remanded back to the trial court for it to exercise its discretion whether to strike his serious felony enhancement. Respondent contends remand is unnecessary because the court clearly indicated it would not have dismissed the enhancement even if it had discretion to do so. We agree with respondent.
"Prior to 2019, trial courts had no authority to strike a serious felony prior that is used to impose a five-year enhancement under section 667, subdivision (a)(1). Senate Bill [No.] 1393 removed this prohibition. (Stats. 2018, ch. 1013, §§ 1, 2.)" (People v. Jones (2019) 32 Cal.App.5th 267, 272.) This legislation applies to judgments that did not become final before January 1, 2019. (Ibid.) Thus, it applies to Armendariz's case because it is not yet final.
Remand is necessary when the record shows the trial court proceeds with sentencing on the erroneous assumption it lacks discretion. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) If, however, the record shows the sentencing court " ' "would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required." ' " (People v. McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels).)
In McDaniels, the court considered when remand was required to allow the trial court to consider whether to exercise discretion imparted by the enactment of Senate Bill No. 620 to strike a firearm enhancement. (McDaniels, supra, 22 Cal.App.5th at pp. 424-428.) In concluding remand was required in that case, the court stated: "To be sure, the egregiousness of a defendant's crimes, a defendant's criminal history, and the court's sentencing options and rulings may prompt the court to express its intent to impose the maximum sentence permitted. When such an expression is reflected in the appellate record, a remand would be an idle act because the record contains a clear indication that the court will not exercise its discretion in the defendant's favor. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [declining to remand where trial court indicated defendant was "the kind of individual the law was intended to keep off the street as long as possible"].) But we believe a remand is necessary when there is no such clear indication of the trial court's sentencing intent." (McDaniels, supra, 22 Cal.App.5th at p. 427; see People v. Jones, supra, 32 Cal.App.5th at pp. 272-275 [applying similar standard to decline remand after enactment of Senate Bill No. 1393 regarding serious felony enhancements].)
In denying the Romero motion, the court expressed great concern with Armendariz's offenses and in sentencing him, it characterized Armendariz's attitude toward women as shocking. Further, if the court felt Armendariz merited some leniency, it could have struck the prior strike conviction allegations and sentenced Armendariz to the aggravated three-year term on his making criminal threats conviction, which would have reduced his aggregate sentence by three years. Or, it could have sentenced him to a doubled middle term of only four years on his making criminal threats conviction, which would have reduced his aggregate sentence by two years. In view of the forgoing, there is no reason to believe that if remanded, the court might strike the prior rape conviction for purposes of the serious felony enhancement, which would reduce his sentence by five years. (Cf. People v. McVey (2018) 24 Cal.App.5th 405, 419 ["In light of the trial court's express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement, there appears no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement altogether."].) Thus, we decline to order remand because it would be an idle act.
The court's imposition of a concurrent term on Armendariz's false imprisonment conviction does not alter this conclusion. As discussed, infra, although the court did not expressly mention section 654, its sentencing comments indicate it believed that section applied to his false imprisonment conviction and that it erroneously imposed a concurrent sentence. --------
The Section 654 Issue
Armendariz contends the court violated section 654 when it imposed a concurrent term on his false imprisonment conviction. Respondent agrees.
Section 654, subdivision (a) provides in pertinent part:
"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."
"Case law has expanded the meaning of section 654 to apply to more than one criminal act when there is a course of conduct that violates more than one statute but nevertheless constitutes an indivisible transaction. [Citation.] 'Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of 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. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Hairston (2009) 174 Cal.App.4th 231, 240.) "[I]f a defendant commits two crimes, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, whether concurrent or consecutive." (People v. Deloza (1998) 18 Cal.4th 585, 594.)
Although the trial court did not expressly find that section 654 applied to Armendariz's false imprisonment conviction, it impliedly made this finding when it found both offenses occurred during a continuous course of conduct and that both offenses shared the objective of controlling the victim's behavior. Thus, we agree with the parties that section 654 applies to Armendariz's false imprisonment conviction and that the court erred when it imposed a concurrent term on that conviction.
DISPOSITION
The judgment is modified to stay the six-year term the court imposed on Armendariz's false imprisonment conviction. The trial court is directed to issue an amended abstract of judgment that incorporates this modification and to forward a certified copy to the appropriate authorities. As modified, the judgment is affirmed.