Opinion
C095770
07-10-2023
THE PEOPLE, Plaintiff and Respondent, v. RYAN ROBERT BAUER, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. CR038986)
McADAM, J. [*]
Defendant Ryan Robert Bauer broke into a family's home while they were in the house and then barricaded himself inside. When law enforcement officers attempted to arrest him, defendant resisted. In court, defendant pleaded guilty to false imprisonment, two counts of vandalism, two counts of resisting executive officers, misdemeanor battery, and misdemeanor aggravated trespass. The trial court sentenced defendant on all counts to a total of 12 years and 10 months imprisonment.
On appeal, defendant contends the trial court violated Penal Code section 654when it imposed and did not stay sentences on both the vandalism count based on breaking the front door window and on the trespass count based on his entering the house. He asserts he was wrongfully punished twice for a course of conduct with a single intent and objective of entering the house without consent. We agree and will vacate the sentence and remand for a full resentencing hearing.
Undesignated statutory references are to the Penal Code.
BACKGROUND
In an amended information, defendant was charged with seven crimes: false imprisonment by violence against one of the residents (§ 236; count one), vandalism of over $400 in damage to the front door glass window (§ 594, subd. (a); count two), vandalism of over $400 in damage to the "china hutch with dishes" (§ 594, subd. (a); count three), resisting executive officer "Sergeant Pon" (§ 69; count four), resisting executive officer "Deputy Sullivan" (§ 69; count five), misdemeanor battery (§ 242; count six), and misdemeanor aggravated trespass (§ 602.5, subd. (b); count seven). It was further alleged on each of the five felony charges that defendant had suffered a prior serious or violent felony (§ 667, subds. (b)-(i)).
On September 22, 2021, defendant pleaded guilty to all charges and admitted his prior serious felony. He stipulated to the police report as the factual basis for his plea.
The police report, as recited in the probation report, stated that shortly after midnight on May 17, 2021, the victims, husband Gregory C. and wife Kimberly C., received notice someone was screaming near their home. Kimberly came downstairs, leaving two young children upstairs, and Gregory went to their front door when defendant appeared at the door's window. Defendant then broke the door's glass window and came into the house while bleeding and saying people were after him. Kimberly fled out of the house's back door.
Meanwhile, Gregory offered to help defendant, but defendant responded aggressively. He put Gregory in a headlock, the two struggled and he then took Gregory's phone. He told Gregory people shot his mother and Gregory was going to die too. Eventually, Gregory was able to escape the house and later told police that the whole incident lasted about 10 minutes.
Lassen County Sherriff's Deputy Sullivan and Sergeant Pon arrived at the house and could see movement inside and hear glass breaking. They entered the house and found defendant barricading himself in a hallway with furniture. They told him to leave the hallway but did not get any response from defendant. Instead, defendant shouted statements about someone being murdered and made rapid and unpredictable movements. After other officers removed the children from upstairs, Deputy Sullivan walked around a knocked over china hutch and found defendant lying on his stomach. He attempted to arrest defendant, but defendant struggled, requiring Deputy Sullivan to deliver a distraction strike to defendant's face. Deputy Sullivan eventually arrested defendant, but he continued to resist, including kicking Deputy Sullivan in the leg. Sergeant Pon continued to try and restrain defendant outside while waiting for medical personnel to arrive.
The full names of the officers are not provided in the record.
After he was arrested, defendant agreed to speak with officers and explained he believed some people were following and threatening him. He said he broke the front door and knocked over the china hutch to get attention and seek help from the people inside the house because some of the people he thought were chasing him had a gun. He said he called 911 from Gregory's phone and told the dispatcher "he entered someone's house and barricaded himself for safety and would wait" for law enforcement to arrive. Defendant also admitted to using methamphetamine about an hour before the incident. Defendant later stated in his probation interview "he was not in his right mind."
On December 21, 2021, the trial court found several aggravating factors present and sentenced him to a total term of 12 years and 10 months: three years (upper term) doubled to six for false imprisonment (count one), eight months (one-third midterm) doubled to 16 months for each of the vandalism and resisting an executive officer convictions (counts two through five), six months for misdemeanor battery (count six), and one year for misdemeanor aggravated trespass (count seven).
DISCUSSION
Defendant contends that his sentence on both the vandalism of the front door and aggravated trespass counts violated section 654. Defendant argues the "vandalism that brought about the trespass, or the trespass that resulted from the vandalism, were one course of conduct, which can only be punished once." The People counter the vandalism was complete upon entry, but defendant "remained present in the home with children upstairs after assaulting [Gregory], and after [Gregory's] escape. Substantial evidence thus supports the trial court's implicit finding that [defendant] harbored a different criminal intent for these two crimes." We agree with defendant.
Defendant also argued the separate sentences on the battery and one of the resisting arrest counts violated section 654. But he withdrew this argument after the People highlighted in their brief the two crimes involved different victims.
Section 654, subdivision (a) at the time of defendant's sentencing hearing provided 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." (Former § 654, subd. (a).) Section 654 applies not only where there was one act in the ordinary sense, but also where there was a course of conduct that violated more than one statute but nevertheless constituted an indivisible transaction. (People v. Beamon (1973) 8 Cal.3d 625, 638-639 [applying section 654 to bar multiple punishments for kidnapping and robbery convictions where both crimes were committed for a single purpose to rob the victim of his truck or its contents].)
"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 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." (Neal v. State of California (1960) 55 Cal.2d 11, 19.) "For example, the defendant in Neal, who attempted to murder a husband and wife by throwing gasoline into their bedroom and igniting it, could not be punished for both arson and attempted murder because his primary objective was to kill, and the arson was the means of accomplishing that objective and thus merely incidental to it." (People v. Perez (1979) 23 Cal.3d 545, 551 [distinguishing Neal where none of the multiple sex offenses charged were committed as a means of committing any other or in the facilitation of any other or were incidental to any other].)
However, "[i]f [defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, [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." (People v. Beamon, supra, 8 Cal.3d at p. 639.)
While the determination of whether the facts reveal a single intent and objective or multiple ones within the meaning of section 654 is generally a factual matter, the scope and meaning of section 654 is a legal question. When the facts are not in dispute - as is the case here - the application of section 654 is a question of law we review de novo. (Neal v. State of California, supra, 55 Cal.2d at p. 17; see also People v. Corpening (2016) 2 Cal.5th 307, 312.)
The course of conduct here involves the breaking of the front door window, charged as vandalism, and then the entering of the house without consent, charged as trespass. The question presented is whether this course of conduct served a single intent and objective or multiple ones. The undisputed facts support the finding of a single intent and objective.
When he first approached the house, defendant believed people were chasing him on the street. He broke the front door window to gain access and to escape their pursuit. Defendant then immediately entered the house through the front door. His conduct in the house further underscores that the entire episode was his effort to secure shelter away from those he believed were chasing him. There is no evidence he was breaking the front door window merely to destroy property or for any other criminal purpose beyond trespass. Thus, the vandalism of the front door and the trespass constituted a course of conduct with a shared intent and objective of urgently entering the home without consent to pursue what he believed was a safe shelter. It is not a divisible course of conduct for purposes of imposing multiple punishments.
Despite this straightforward application of section 654, the People contend that the defendant harbored multiple intents and objectives by remaining in the house for a period of time after breaking into it. This argument reflects a misunderstanding of the law of trespass. The trespass provision relevant here, section 602.5, subdivision (b), is violated when, without the consent of the owner, the person "enters or remains in any noncommercial dwelling house, apartment, or other residential place while a resident, or another person authorized to be in the dwelling, is present at any time." This provision may be violated by remaining in the house without consent, but it is also, fundamentally, violated once the person enters the premises. The "remaining in the dwelling" grounds for trespass arises when the perpetrator may have initially entered the property lawfully, but then remained beyond the lawful purpose and without consent. Here, defendant's trespass was complete on entry into the house, facilitated by, and with the same intent as, the vandalism of the front door. That his trespass extended for some time beyond the initial entry does not change the fact the vandalism immediately preceded and permitted the trespass.
We, therefore, conclude that the trial court's sentence composed of multiple punishments for the front door vandalism and the trespass cannot stand under a lawful application of section 654. Rather, one punishment must be stayed.
We now consider whether remand is necessary. Unaddressed by either party is the effect of recent changes to section 654. Effective January 1, 2022, section 654 was amended pursuant to Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1) to provide the trial court with the discretion to choose the count for which it will impose punishment rather than requiring the trial court to select the count with the longest potential term of imprisonment. This change in the law, like many others like it, is retroactive to defendant's case. (See In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence of contrary legislative intent, ameliorative criminal statutes apply to all cases not final when the statute takes effect]; see also People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.)
The trial court now has the discretion to select which count to stay. When a court is unaware of the scope of its discretionary powers, the remedy is to remand for resentencing unless the record clearly indicates what conclusion the trial court would have reached. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) Upon review of the record, we are unable to conclude how the trial court would have ruled under the new law. Thus, we shall remand for a full resentencing to permit the trial court to exercise this discretion in the first instance. (See, e.g., People v. Buycks (2018) 5 Cal.5th 857, 893 [full resentencing rule]; People v. Jones (2022) 79 Cal.App.5th 37, 46 [statutory changes to sections 1170, subdivision (b), and section 654 warrant a full resentencing hearing].)
The trial court here imposed an upper-term sentence on the false imprisonment count, and the parties do not appear to have stipulated to the aggravating circumstances. Though not raised by either party, defendant's sentencing hearing took place shortly before Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) became effective. This bill modified section 1170 and the circumstances in which a trial court may impose an upper-term sentence. (See § 1170, subd. (b).) Because we are remanding for a full resentencing hearing, the parties and the trial court may consider this legislative change and any other changes in the law that may apply at the time of defendant's resentencing.
DISPOSITION
The sentence is vacated, and the case is remanded for a full resentencing hearing with direction to the trial court to resentence defendant on counts two and seven pursuant to section 654 and to further exercise its sentencing discretion under all applicable law. The judgment is otherwise affirmed.
We concur: MAURO, Acting P. J., DUARTE, J.
[*] Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.