Opinion
C080309
02-28-2017
THE PEOPLE, Plaintiff and Respondent, v. PAUL CAMARENA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F07396)
A jury convicted defendant Paul Camarena of two counts of assault with a deadly weapon, a motor vehicle (counts one & five; Pen. Code, § 245, subd. (a)(1)); one count of simple assault, a lesser included offense of assault with a deadly weapon (count two; § 240); two counts of felony vandalism (counts three & six; § 594, subd. (a)); and one count of battery (count four; § 242). The victim in counts one, three and four was Daniel Petersen; the victim in count two was Christopher Shumann; the victim in count five was Carlos Gomez; and the victim in count six was Alexis Patten.
Undesignated statutory references are to the Penal Code.
The trial court thereafter found that defendant committed the offenses charged in counts five and six while released from custody on pending charges (§ 12022.1).
The trial court sentenced defendant to five years in state prison, consisting of two years (the low term) on count one (assault with a deadly weapon), two years consecutive for the section 12022.1 enhancement, and one year (one-third the midterm) consecutive on count five (assault with a deadly weapon). The court also imposed concurrent two-year terms on counts three and six (vandalism), and 30 days concurrent on count four (battery). Lastly, the court purported to suspend defendant's driving privilege for life (Veh. Code, § 13351.5).
Defendant contends: (1) sentence on count six should be stayed under section 654 and (2) the order purporting to suspend defendant's driving privilege was unlawful because Vehicle Code section 13351.5 reserves that authority to the Department of Motor Vehicles (DMV). The Attorney General agrees with both points, and so do we.
We modify the judgment by ordering that the sentence on count six be stayed under section 654. We also strike the order purporting to suspend defendant's driving privilege, and direct the trial court instead to furnish a certified copy of defendant's convictions to the DMV. As modified, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
October 25, 2014 (counts one through four)
On October 24, 2014, defendant got off work at 11:00 p.m., then went to a Chevron station in Elk Grove where he was in the habit of hanging out; he arrived there between 11:15 and 11:30 p.m. and stayed there for a few hours. Daniel Petersen, who worked at the station, was present, but not on duty at that time. Christopher Shumann was also present, working as a cashier.
During a discussion, Petersen kidded defendant about his excessive weight, and defendant took offense. They argued and cursed at each other.
Defendant walked out to his Dodge Durango to pump gas. According to Petersen, he followed defendant outside in order to apologize.
A surveillance video played for the jury showed that Petersen followed defendant outside at 2:50 a.m. on October 25, 2014. Petersen stopped toward the rear of defendant's Dodge Durango as defendant pumped gas. Defendant walked up to Petersen, pushed him, and threw punches at him, then got into the Durango as Petersen started to walk back into the station. Defendant backed up quickly alongside the gas pumps, nearly hitting Petersen.
Defendant pulled forward and turned the Durango away from the gas pumps, causing Petersen to scramble out of the way to avoid the vehicle. Shumann, who had come outside, fell to the ground in front of the Durango; defendant stopped in time to avoid him. Defendant then backed up and pulled forward, again causing Petersen to scramble away from the vehicle. Finally, defendant drove off.
While Petersen went home to get work boots for another job, defendant drove around the neighborhood, then returned to the station. Seeing defendant inside the station, Petersen went back in (again intending to apologize, according to him). Defendant walked outside, followed by Petersen and Shumann.
Defendant got back into his Durango. Petersen talked to him through an open window in the vehicle. Shumann was standing between the Durango and Petersen's Jeep Cherokee, parked in front of the station.
Defendant drove toward the side of the Jeep Cherokee and struck it near the front tire on the passenger side. Petersen was in the path of defendant's vehicle.
Defendant backed up, then drove forward again, striking the Jeep Cherokee behind the rear tire on the passenger side and pushing it approximately six feet into the car parked next to it. Petersen jumped onto the curb and walked back into the station, while Shumann walked away. Defendant drove off.
The prosecutor argued that defendant committed assault with a deadly weapon upon Petersen (count one) on both his first and his second visit to the gas station. The jury received a unanimity instruction as to this count.
Petersen quit his job at the station later that day. He thereafter got a copy of the surveillance footage from Shumann for insurance purposes, and that copy (three clips totaling 51 seconds) was played for the jury.
The damage to Petersen's vehicle was estimated at $3,249.06.
As to this incident, defendant testified that Petersen was the aggressor throughout, and the incomplete surveillance video was misleading. According to defendant, when leaving the gas station the first time, he was merely trying to escape from Petersen in a narrow space with little maneuvering room. Defendant also claimed that when he struck Petersen's Jeep the first time after returning to the station, it was an accident: Petersen had reached through the open window of the Durango and punched him, and his foot slipped off the brake. Defendant admitted, however, that when he struck the Jeep again, he did so deliberately because he had lost control of his emotions.
February 13-14, 2015 (counts five & six)
Carlos Gomez, a friend of defendant's, and Gomez's girlfriend Alexis Patten drove around with defendant in his Dodge Durango to various places on February 13, 2015. They went to marijuana stores, ate Mexican food, smoked marijuana, and attended a movie at a theater, but left in the middle. By the time they left the movie, defendant was "all drowsy and high." Patten drove defendant's Durango to Gomez's house.
Returning to Gomez's house around 1:00 a.m., they all stayed outside because they were high and Gomez's mother was asleep inside. At some point, Gomez and Patten went into Gomez's house to get some food, leaving defendant outside. When they returned outside, defendant and the Durango were gone. As Gomez and Patten got into Patten's Honda Civic to go look for defendant, he returned to the scene and pulled up behind them.
Gomez and defendant got out of their vehicles; Patten stayed in the Honda. Apparently thinking Gomez had stolen money from him, defendant asked, "Where's my money, bro?" After Gomez said he did not have it, defendant threw a punch that grazed Gomez's head and knocked his hat off. Gomez pushed defendant up against the Durango. Defendant got in the Durango and backed the vehicle up. Gomez stood in defendant's path, between the Honda and defendant's vehicle, while saying, "Please don't do this," having seen defendant hit a car before, he felt this was "a game of chicken." Defendant accelerated and pulled forward. When Gomez jumped out of the way, defendant collided with the Honda.
According to Gomez's brother, who came outside at that moment, defendant's Durango hit the Honda's left rear bumper. Although Gomez had been in defendant's path, he moved to the side and the Durango "barely hit him." Gomez's brother ordered to defendant to leave; he did.
The estimated cost to repair the Honda was at least $1,000.
Defendant testified that he had no recollection of these events because he had taken five Xanax pills after meeting Gomez and Patten.
DISCUSSION
I
In his opening brief, defendant contends that the trial court should have stayed sentence on counts three (vandalism on Petersen's vehicle) and six (vandalism on Patten's vehicle) under section 654, rather than imposing concurrent sentences on those counts, because the vandalism counts arose from the acts of driving that established the corresponding assaults (counts one & five). The Attorney General agrees as to count six, but argues in reliance on People v. McCoy (2012) 208 Cal.App.4th 1333 (McCoy), not cited in defendant's opening brief, that concurrent sentencing on count three was proper because defendant committed two acts of assault against Petersen, only one of which damaged his vehicle. In defendant's reply brief, he concedes that McCoy justifies concurrent sentencing as to count three. Thus, the parties have wound up in agreement that the sentence as to count six alone should be stayed under section 654. We agree with the parties.
Section 654 proscribes multiple punishments for a single physical act, even where that act violates more than one provision of law. (People v. Correa (2012) 54 Cal.4th 331, 337; People v. Jones (2012) 54 Cal.4th 350, 358.) An "act" under section 654 can include an indivisible course of conduct, provided all the offenses were incident to a single objective. (People v. Correa, supra, at pp. 335-336.) But if the defendant entertained multiple, independent objectives, multiple punishment is proper. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
Where section 654 applies, it is error to impose concurrent sentences on two counts because to do so implies a finding of multiple intents or objectives (People v. Alford (2010) 180 Cal.App.4th 1463, 1468) and because the defendant is deemed to be subjected to the terms of both sentences, even though served simultaneously. (People v. Jones, supra, 54 Cal.4th at p. 353.) Instead, the trial court should impose sentence on each count, but stay execution of sentence on the conviction to which section 654 applies. (Ibid.)
Whether section 654 applies is a question of fact, as to which the trial court has broad discretion in making its determination. (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378.) The court's findings of fact, express or implied, must be upheld if supported by substantial evidence. (People v. Evers (1992) 10 Cal.App.4th 588, 604.) However, if no such evidence exists and the sentence violates section 654, it is unauthorized and must be corrected on appeal even though no objection was raised below. (People v. Hester (2000) 22 Cal.4th 290, 294-295.)
Here, the acts constituting count five (assault with a deadly weapon upon Gomez) and count six (vandalism to Patten's car) amounted to a single act or course of conduct: defendant drove his vehicle at Gomez, and when Gomez stepped aside, the vehicle continued on into Patten's car, immediately where Gomez had been standing. In imposing sentence on these counts, the trial court made no express factual findings of separate intents and objectives, and on these facts we cannot find any such separate intents and objectives. Therefore, we agree with the parties the concurrent term imposed on count six should be stayed pursuant to section 654. (People v. Hester, supra, 22 Cal.4th at pp. 294-295.)
As to counts one and three, however, the trial court expressly found that both of defendant's acts of driving at Petersen's person, on defendant's first and second visits to the gas station, constituted the crime of assault with a deadly weapon, and that on the second occasion, defendant deliberately rammed Petersen's vehicle three times. Thus, the trial court found that the vandalism constituting count three was committed on a separate occasion and with a separate intent and objective from the first assault on Petersen.
"[A] trial court may base its decision under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts." (McCoy, supra, 208 Cal.App.4th at p. 1340, original italics.) Because the verdict in this case does not show which of defendant's acts of assault the jury relied on to convict on count one, the court was within its discretion to treat defendant's first assaultive act as constituting that offense and to find that it was separable, as to both chronology and intent or objective, from the act that constituted count three. Therefore, substantial evidence supports the conclusion that section 654 did not apply to count three, and resentencing is not called for as to that count.
II
Defendant contends that the trial court's order suspending his driving privilege for life is unlawful because Vehicle Code section 13351.5, under which the court purported to act, expressly reserves the authority to suspend driver's licenses to the DMV. The Attorney General agrees. We agree with the parties.
Vehicle Code section 13351.5, subdivision (a), states: "Upon receipt of a duly certified abstract of the record of any court showing that a person has been convicted of a felony for a violation of Section 245 of the Penal Code and that a vehicle was found by the court to constitute the deadly weapon or instrument used to commit that offense, the [DMV] immediately shall revoke the privilege of that person to drive a motor vehicle."
The statute means what it says: it is for the DMV, not for the trial court, to perform the mandatory civil administrative act of revoking a driver's license after the driver has been convicted of assault with a deadly weapon by means of a vehicle. (People v. Linares (2003) 105 Cal.App.4th 1196, 1198-1199; In re Grayden N. (1997) 55 Cal.App.4th 598, 604.) Because the trial court's order purporting to suspend defendant's driver's license for life under color of Vehicle Code section 13351.5 was unauthorized, we may correct it even though defendant did not object below. (People v. Linares, supra, 105 Cal.App.4th at p. 1199 & fn. 2.) We therefore strike the order and direct the court on remand to furnish a certified copy of the abstract of judgment to the DMV so that it may perform its mandatory administrative duty.
DISPOSITION
We modify the judgment by ordering that the sentence on count six be stayed pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment reflecting this change and to furnish a certified copy thereof to the Department of Corrections and Rehabilitation. The court is also directed to amend the sentencing minute order to delete the statement: "Defendant's privilege to drive a motor vehicle susp for life purs VC 13351.5." Finally, the court is directed to furnish a certified copy of the amended abstract of judgment to the DMV. As so modified, the judgment is affirmed.
NICHOLSON, J. We concur: RAYE, P. J. ROBIE, J.