Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. GA070473 Laura F. Priver, Judge.
Janice Wellborn, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General; Pamela C. Hamanaka, Senior Assistant Attorney General; Paul M. Roadarmel, Jr. and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
INTRODUCTION
Defendant Robert Barnes attacked his ex-wife in front of the Pasadena police station, striking her repeatedly in the face. A jury convicted Barnes of attempted voluntary manslaughter, mayhem and torture. At sentencing, Barnes argued that the trial court could only impose one punishment because all three counts arose from a single act within the meaning of Penal Code section 654. The trial court ruled that section 654 applied to the mayhem and torture counts only, and sentenced Barnes to serve consecutive sentences for attempted voluntary manslaughter and mayhem.
On appeal, Barnes argues that the trial court’s imposition of multiple punishments violated section 654. We agree and reverse the trial court’s sentence on counts one and two, and remand for re-sentencing.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Proceeding Trial
Defendant Robert Barnes and S.C. were married in 1995 and had two children: Robert, born in 1994, and Kira, born in 2000. Shortly after Kira was born, Barnes falsely accused S. of having extra-marital affairs with her brother-in-law and a co-worker. In January 2003, Barnes pulled a chair out from under S. because he was angry about the alleged affairs. Over the next several months, Barnes became increasingly abusive, choking S. nearly to the point of unconsciousness and punching and kicking her in the arms and head. At one point, Barnes tied S. to a baby gate and said he was going to kill himself.
In February 2003, S. left her husband and filed for a divorce, which became final in April 2005. Although S. was awarded custody of the children, Barnes was given visitation on Sunday mornings and Thursday nights. S. initially agreed to conduct the custody exchanges in front of public establishments, such as a grocery store. However, after Barnes became aggressive at several exchanges, S. required that all future meetings occur in front of either the Monrovia or Pasadena police departments.
On the morning of Sunday, July 29, 2007, S.C. met Barnes at the Pasadena police department for a custody exchange. Barnes instructed Robert and Kira to get into his car and then approached S. Elbert Quoleshna was walking past the Pasadena police station on her way to church and heard Barnes begin screaming that S. had “accused him of rape.” Based on the “vehemen[t]” and “intens[e]” way Barnes was staring at S., Quoleshna became concerned he might “take action.” Quoleshna warned Barnes “‘if you do anything to her, I’ll call the police.” Barnes ignored Quoleshna and began moving toward S. After pausing briefly, Barnes charged S., threw her to the ground and started punching her in the face and head. Quoleshna tried to stop the attack by hitting Barnes with her purse, but it had no effect.
At the time this was occurring, Larry Harnisch was driving his truck past the police station and noticed a cluster of people on the sidewalk. As he approached, Harnisch saw Barnes holding S. by the collar, striking her in the head and face “repeatedly and continuously.” According to Harnisch, S.’s head was “hanging limp like a rag doll, ” and her arms were “hanging back.”
Harnisch attempted to stop the attack by honking his horn, but Barnes continued throwing punches. Harnisch then exited his vehicle, grabbed Barnes’s arm from the rear and rotated him away from S. After Barnes freed his arm, he walked away from S., yelling “you don’t know what she has done.” Barnes then turned around, and started walking back toward the victim, but Harnisch blocked his way and redirected him away from the scene of the attack.
Officer Tim Bundy was driving toward the front of the police station when he saw Barnes approaching his vehicle. Harnisch was following closely behind, yelling for Bundy to “stop him.” Officer Bundy exited his vehicle, drew his taser and ordered Barnes to stop. Barnes walked to the front of the Bundy’s vehicle, put his hands on the hood and spread his feet. After Officer Bundy detained Barnes, Harnisch turned back to look at S. and it appeared that she “had no face... it was just red. There was no features at all. It wasn’t like somebody has a bloody face. There was just blood. There was no face.” ”
Barnes was arrested and taken into custody. During the booking process, Barnes told Bundy that the court had taken away his spousal support payments after “[S.] lied in court and said I was a rapist.” Barnes also stated that, before attacking S., he asked her “Am I a rapist? Am I a rapist? That’s what you said under oath.” When S. turned toward the police station, Barnes thought she was going to make “some kind of report” and he “snapped, ” explaining “I wasn’t gonna have her making for anymore false claims.” Barnes later added “I hope she is dead, cause [sic] I don’t want the devil raising my kids.”
As the result of Barnes’s attack, S. suffered head trauma, a broken facial bone and lacerations on her face, neck and ear. Her jaw was fractured, which required reconstructive surgery to properly realign it. At trial, S. testified that she had sustained brain damage and no longer had the capacity to do math or process movies or television shows.
B. Indictment, Conviction and Sentencing
On January 4, 2008, the Los Angeles County District Attorney filed an information charging Barnes with attempted, premeditated murder (Pen. Code, §§ 187, subd. (a); 664), aggravated mayhem (§ 205) and torture (§ 206). An amended information added a special allegation asserting that, in the commission of each count, the defendant had “personally inflicted great bodily injury on S.C., under circumstances involving domestic abuse.” (See § 12022.7, subd. (e).)
All further statutory citations are to the Penal Code unless otherwise indicated.
The case proceeded to trial and the jury found Barnes not guilty of attempted, premeditated murder, but guilty of the lesser included offense of attempted voluntary manslaughter. The jury also convicted Barnes of aggravated mayhem and torture, and found that, in committing all three offenses, Barnes had inflicted great bodily injury under circumstances involving domestic violence.
At sentencing, Barnes argued that all three counts arose from a single act within the meaning of section 654 and, as a result, the trial court was barred from imposing multiple punishments. The District Attorney, however, argued that section 654 did not apply because all three counts were “specific intent crimes” that required the prosecution to prove the defendant acted with a different intent. The District Attorney further argued that, based on its verdict, the jury necessarily concluded that the defendant “had multiple intents at the time of the crime, ” rendering section 654 inapplicable.
The trial court ruled that section 654 applied to the mayhem and torture counts, but not to the attempted manslaughter conviction. The court then sentenced Barnes as follows: on count one (attempted voluntary manslaughter), the court sentenced Barnes to one and a half years in prison, plus a five year enhancement for the great bodily injury special allegation. On count two (aggravated mayhem), the court sentenced Barnes to an indeterminate sentence of life in prison with possibility of parole, to be served consecutively to count one. The court also imposed a five-year determinate sentence for the great bodily injury enhancement, but stayed that portion of the sentence “pursuant to section 654.” On count three (torture), the court sentenced defendant to life in prison with the possibility of parole, with a five-year determinate sentence for the great bodily harm enhancement, but stayed the entire sentence pursuant to section 654.
DISCUSSION
On appeal, Barnes argues that the trial court erred in imposing separate, consecutive sentences on counts one and two because both counts arose from a single “act” within the meaning of section 654.
A. Summary of Legal Principles and Standard of Review
Penal Code “[s]ection 654 reads: ‘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 speaks in terms of an ‘act or omission, ’ it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time. [Citation.] The key inquiry is whether the objective and intent attending more than one crime committed during a continuous course of conduct was the same. [Citation.] ‘[I]f all of the offenses were merely incident to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [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. Meeks (2004) 123 Cal.App.4th 695, 703-704.)
“‘The defendant’s intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence. [Citation.]’ [Citations.]” (People v. Phong Bui (2011) 192 Cal.App.4th 1002, 1015 (Phong Bui).) In conducting the substantial evidence analysis, “[w]e must ‘view the evidence in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’” (People v. Holly (1976) 62 Cal.App.3d 797, 803.)
B. There is Insufficient Evidence to Support the Trial Court’s Finding that Barnes Acted with Multiple, Independent Objectives
Barnes argues that his attack on S.C. was part of one continuous transaction and incident to one objective which, as argued by the prosecution at trial, was to kill S. It is undisputed that both counts at issue here, attempted voluntary manslaughter and aggravated mayhem, arose from a single continuous course of conduct. The determinative issue is whether Barnes had multiple, independent objectives.
Attempted voluntary manslaughter and aggravated mayhem are both specific intent crimes. The former requires the prosecution to prove the defendant acted with the intent to kill, while the latter requires it to prove the defendant intended to permanently disable or disfigure the victim. (See People v. Montes (2003) 112 Cal.App.4th 1543. 154-1550 [voluntary manslaughter requires “a specific intent to bring about... the killing of a human being”]; People v. Quintero (2006) 135 Cal.App.4th 1152, 1162 [“Aggravated mayhem is a specific intent crime which requires proof the defendant specifically intended to cause the maiming injury, i.e., the permanent disability or disfigurement”].) Thus, by convicting Barnes of both crimes, the jury necessarily found that he attacked S. with the intent to both disable and kill her.
However, section 654 does not become inapplicable merely because “a defendant is convicted of two crimes with different specific intent requirements” or acted with “multiple objectives.” (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1313 (Sanchez).) Rather, as the Fourth District explained in People v Sanchez, supra, 179 Cal.App.4th 1297:
Section 654 bars multiple punishments even if the defendant has ‘“multiple criminal objectives, ”’ as long as those objectives were not ‘independent’ but ‘merely incidental to each other....’ [Citation.] The focus is not on the statutory elements of the crimes; rather, it is on the particular defendant’s actual intent and objective.
(Sanchez, supra, 179 Cal.App.4th 1297, 1314.) Therefore, even if Barnes intended to disable and kill S., section 654 still bars the imposition of multiple punishments if those objectives were incidental to one another.
At trial all of the witnesses who observed Barnes’s attack testified that he charged S., and then began punching her in the face and head. The attack continued, unabated, until Harnisch pulled Barnes off the victim. There is no evidence that Barnes paused at any point during the attack; instead, the witnesses described his assault as “continuous” and of a “short” duration.
Several prior decisions involving similar facts have held that section 654 does not permit a trial court to impose multiple punishments for crimes arising from a single attack on a single victim. In Phong Bui, supra, 192 Cal.App.4th 1002, the defendant was pointing a gun at the victim and the firearm discharged, which caused the victim to fall to the floor. The victim heard “at least two more shots, ” which occurred “very quick, less than 10 seconds apart.” (Id. at p. 1006.) Doctors later removed two bullets from the victim, and a third bullet was found in the area where the shootings occurred. (Ibid.) The defendant was convicted of attempted murder and mayhem, and the trial court elected to impose two sentences, to be served consecutively. (Id. at p. 1009.)
The appellate court reversed the trial court’s sentence, ruling that, “under section 654, [the defendant] may not be punished for both attempted murder and mayhem counts.” (Phong Bui, supra, at p. 1015.) The court reasoned that
the offenses were both based on the shooting of [a single victim].... [T]he three shots were fired within seconds of each other, and formed one transaction. There was no evidence defendant had independent objectives for the two crimes that would justify multiple punishment. In the circumstances, the sentence for the mayhem count should have been stayed.
(Ibid.)
Phong Bui’s holding was predicated on People v. Pitts (1990) 223 Cal.App.3d 1547 (Pitts), in which the court held that the defendant could not receive consecutive sentences for aggravated assault and mayhem “based on one attack on one victim.” (Id. at p. 1560.) The defendant in Pitts allegedly raped a woman in a bathroom. When the victim tried to flee, the defendant chased her down, threw her to the ground and began hitting her. During the attack, the victim pulled a box cutter from her back pocket to defend herself, but the defendant gained control of the weapon and slashed her several times on her chest. (Id. at p. 1552.) The jury hung on the rape charge, but found that, in chasing the victim down and attacking her, the defendant had committed mayhem and aggravated assault. On appeal, the court reversed the trial court’s imposition of consecutive sentences, explaining that section 654 applied because “there was only one act.” (Id. at p. 1560.)
Finally, in People v. Latimer (1993) 5 Cal.4th 1203, the California Supreme Court considered whether section 654 applied to a defendant who had been convicted of both kidnapping and rape. The evidence showed that defendant abducted the victim, drove her into the desert and then repeatedly assaulted and raped her. (Id. at p. 1206.) The defendant pled guilty to two counts of rape and kidnapping and the trial court imposed consecutive sentences for each count. The Supreme Court concluded that although the defendant may have acted with different intents by first kidnapping, and then raping the victim, section 654 still barred the imposition of consecutive sentences for those crimes:
It could be argued that defendant had two intents: (1) to drive the victim against her will to an isolated area, and (2) to rape her. [Our prior holdings]..., however, make clear that multiple punishment for both the rapes and the kidnapping is prohibited under the circumstances of this case. Although the kidnapping and the rapes were separate acts, the evidence does not suggest any intent or objective behind the kidnapping other than to facilitate the rapes.
(Id. at p. 1216.)
Based on the above authorities, we conclude that the trial court erred in imposing consecutive sentences for attempted voluntary manslaughter and aggravated mayhem. As in Phong Bui, the evidence showed that Barnes attempted to kill the victim in a single, continuous attack that occurred for a brief duration of time. Although Barnes may have acted with two intents – to disable and kill S. – the evidence does not suggest any intent or objective behind disabling S. other than to facilitate his attempted killing of the victim. We see no meaningful difference between attempting to kill a victim by throwing several punches in close succession, and attempting to kill a victim by firing several shots in close succession. In both situations, section 654 bars the imposition of multiple punishments because, although the manner in which the defendant tried to kill the victim was sufficient to prove mayhem, “all of the crimes were merely... the means of accomplishing... one objective.” (See Phong Bui, supra, 192 Cal.App.4th at p. 1015 [section 654 applicable]; People v. Galvan (1986) 187 Cal.App.3d 1205, 1218 [“Section 654 precludes double punishment when one offense facilitates... the commission of another offense”].) Were we to conclude that the facts of this case supported multiple punishments, it is difficult to conceive of a situation in which section 654 would ever bar the imposition of consecutive sentences for an attempted murder consummated through physical force.
We recognize that there may be circumstances under which multiple punishments would be appropriate despite the fact that the defendant committed only one continuous attack on a single victim. For example, our courts have permitted multiple punishments where, during a continuous course of conduct, the defendant committed multiple offenses “separated by periods of time during which reflection was possible.” (See People v. Sardi (1995) 35 Cal.App.4th 685 [§ 654 did not apply to kidnapping and attempted murder counts where defendant abducted victim, stabbed him in van, and then, after pausing to consider what to do with the victim, resumed the attack while dragging him to a riverbed].) Similarly, multiple punishments might be appropriate if the evidence showed the defendant maimed or tortured the victim, and then immediately attempted to kill the victim through different means or through a different act. That is not the case here.
The Attorney General, however, contends that the record contains sufficient evidence to support the trial court’s finding that Barnes acted with an independent objective to first maim, and then kill S. The only evidence cited in support of this argument is testimony that, during the attack, “the victim was seen ‘hanging like limp’ by the ‘scruff of her neck.’” Based on this evidence, it may be fairly inferred that S. was disabled during the attack, and that, by continuing to strike S. after she was disabled, Barnes intended to do more than merely hurt the victim. This testimony thus supports the conclusion that Barnes’s objective in disabling the victim was to facilitate his attempted killing.
C. Remedy
Generally, the appropriate appellate remedy for failing to apply section 654 “is to stay the imposition of sentence on the less serious offense.” (People v. Norrell (1996) 13 Cal.4th 1, 9, superseded by statute on other grounds, as stated in People v. Kramer (2002) 29 Cal.4th 720 (Kramer).) In this case the “lesser offense” is attempted voluntary manslaughter because the maximum potential sentence for that count is less than the maximum potential sentence for aggravated mayhem, which is life in prison. (See generally Kramer, supra, (2002) 29 Cal.4th at pp. 722-723 [section 654 requires the court to sentence the defendant under provision that provides for the longest potential term of imprisonment]; compare §§ 193, subd. (a), 664, subd. (a) [sentence of attempted voluntary manslaughter is one and a half, three or five and a half years], and § 205 [“Aggravated mayhem is a felony punishable by imprisonment in the state prison for life with the possibility of parole”].) Normally then, our remedy on appeal would be to stay Barnes’s sentence for attempted voluntary manslaughter.
However, based on the manner in which the trial court sentenced defendant here, we conclude that the appropriate remedy is to reverse the trial court’s sentence and remand for resentencing. At sentencing, the trial court concluded that section 654 did not permit separate punishments for mayhem and torture. It therefore elected to stay the torture sentence and impose consecutive sentences on the attempted manslaughter and mayhem counts. For the reasons discussed above, we conclude that section 654 prohibits consecutive sentences on those two counts. We remand for resentencing, however, to allow the trial court to consider whether the facts of this case permit separate punishments for the attempted manslaughter and torture counts.
We further note that the trial court appears to have erred in calculating the proper range of sentences available for Barnes’s attempted manslaughter count. Barnes was convicted of attempted voluntary manslaughter, which carries a potential term of one and a half, three or five and a half years in prison. (See §§ 193, subd. (a) & 664, subd. (a).) However, at sentencing, the trial court stated that “as to count one... [for] attempted voluntary manslaughter..., as to that, the trilogy since it[’]s an attempt is one year, one year six months, and two years in the state prison. [¶] The court is selecting the midbase term of one year six months in state prison.” The “trilogy” of possible sentences referred to by the court describes the sentences applicable to attempted involuntary manslaughter, not attempted voluntary manslaughter. (See § 193, subd. (b) & 664, subd. (a).) In addition, Barnes’s abstract of judgment erroneously states that he was convicted of attempted, premeditated murder, rather than attempted, voluntary manslaughter. These errors should be addressed on remand.
DISPOSITION
The case is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
We concur: PERLUSS, P. J., JACKSON, J.