Opinion
E080606
06-26-2024
THE PEOPLE, Plaintiff and Respondent, v. RICARDO MARTINEZ CERVANTES, Defendant and Appellant.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF2100030 Walter H. Kubelun, Judge. Affirmed.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MCKINSTER ACTING P. J.
Defendant and appellant Ricardo Martinez Cervantes admitted having suffered two prior serious felony (Pen. Code, § 667, subd. (a)) and two prior strike convictions (§§ 667, subds. (c) &(e)(1), 1170.12, subd. (c)(1)). A jury thereafter found defendant guilty of kidnapping (§ 207, subd. (a), count 1), assault with a deadly weapon (§ 245, subd. (a)(1), count 2), domestic violence (§ 273.5, subd. (a), count 3), criminal threats (§ 422, count 4), and dissuading a witness (§ 136.1, subd. (c), count 5). The jury additionally found true allegations that defendant had personally used a deadly weapon in his commission of the kidnapping and criminal threats offenses (§ 12022, subd. (b)(1)), and that he had threatened the use of force in his commission of the dissuading a witness offense (§ 136.1, subd. (c)(1)). The court sentenced defendant to state prison for a determinate term of 10 years plus 50 years to life.
All further statutory references are to the Penal Code.
On appeal, defendant contends the court erred in imposing an unstayed, consecutive sentence on count 4, which he maintains should have been stayed pursuant to section 654. In the alternative, defendant maintains the court prejudicially erred in failing to sua sponte instruct the jury with a unanimity instruction. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Defendant and the victim dated for around 11 months; during part of that time, they lived together. A few weeks after they broke up, the victim ran into defendant at a friend's house.
They left together; the victim drove defendant to the home where he rented a room. After they arrived in front of the home, they began arguing. Defendant did not want to make a scene, so he told the victim to drive off.
Defendant wanted to go to a casino; however, the victim did not want to go. Defendant pulled out a pocketknife, which he held in an open and threatening manner: "He used to like to pull out his knife, his pocketknife, and liked to show it to me; at times, stab me in the leg with it, not deep, but enough to either cut my clothing or scratch me. And he did that a lot. So he always had a pocketknife on him. He was showing me his pocketknife and he was telling me to go to the casino."
While driving, defendant threatened the victim: "I can't recall exactly the words that he used. I know there were a lot of times that I'm by myself or that I was going to die. I'm not sure specifically that day, to be honest." Defendant's presentation of the knife motivated her to drive toward the casino.
The victim then told defendant that if he ever pulled a knife on her again, she was going to go to the police. She started driving toward the police department. When defendant noticed her route change, he grabbed the wheel and turned it hard. He told her if she ever called the police, he would cut off all her fingers.
The victim drove back to defendant's home. When they arrived, he told her to get out of the car. She told him she did not want to get out. Defendant told the victim she was going to do what he said. He then exited the car, went around to her side, grabbed her hair, and yanked her out of the car.
The victim loudly told defendant she did not want to go inside the home, hoping a neighbor who was outside would call the police. Defendant cut her hair with the knife and forcefully dragged her into his room. He then hit her on the cheek, choked her, bit her cheek, and grabbed her by the throat lifting her off the ground. Defendant pushed her onto the bed where he stuck her in the thigh with something sharp.
Defendant told the victim she was going to die, and that he was going to bury her in the desert. She thought she was going to die. The victim told defendant she wanted to leave. He kept telling her she was not going to leave. She told him she had a doctor's appointment; he told her she was not going to make it.
At some point, defendant allowed the victim to leave but decided he was going with her. She told him to get out of the car, but he refused. The victim drove toward her child's home. When they were almost there, defendant threw a soda on her and grabbed the keys out of the ignition. He got out of the car and started kicking her car, yelling at her, calling her names, and walked off.
The victim had a spare key, which she used to drive home. She was contacted by police shortly thereafter.
During the People's closing argument, the People argued that the criminal threats offense occurred, "When [defendant is] in that car and he has that knife out, he tells her that he's going to kill her." In the People's sentencing brief, they conceded that the kidnapping, assault, and domestic violence offenses would be subject to section 654 because defendant shared the same intent and objective in committing them. However, the People contended the criminal threats and dissuading a witness offenses were separate and apart from the intent and objective of the other offenses.
The prosecutor argued which facts constituted each of the five offenses with which they charged defendant.
At sentencing, defense counsel argued, "Yes, your Honor. I think [the People] conceded, and I agree with her, that the kidnapping and the assault with a deadly weapon would be [stayed pursuant to section] 654. I would also think that the [criminal threats] and dissuading would be 654 to each other. I think the evidence as presented at trial was that [defendant] said something along the lines of, if you call the police, I'll cut you or cut your fingers off. I think that was one statement that the jury could have convicted him." "Based on the one statement for the [criminal threats] and the dissuading, I can't remember another statement that-that separate statement that the jury could have used to convict for one of those and not the other. So I do think the [criminal threats] and the [dissuading] would be 654 to each other...."
The People countered, "I would like to address the defense counsel's argument that the [threats] and [dissuading] arose out of the same statement. The People disagree with that representation. The People did not argue it that way, and the allegation associated with the criminal threats charged in Count 4 was that he was personally armed with a weapon at that time. The [threats] did not occur at the time that the defendant told the victim that he would cut off her fingers if she called 911. Instead[,] it was the statement that he was going to kill her while armed with . . . the knife in the vehicle. [¶] So I do believe that those are not 654. That was not the evidence in front of the jury, and it was not the argument made by the People ...."
Defense counsel replied, "The Court may have a better memory than I, your Honor, about how the evidence was elicited at trial. I remembered in the vehicle it being that there was a knife brandished but not a threat in the vehicle. I think, for the criminal threat, there would have to be a verbal threat. So I think the jury-it's unclear of what the jurors used in terms of which threat to find him guilty of that criminal threat."
The People responded, "I think we are just going to fundamentally disagree about Count 4. There was an allegation as to Count 4, specifically, that when he made that threat-that when the defendant made that threat, he was armed with a deadly weapon, and they found that allegation to be true. There was no evidence whatsoever that when [defendant] threatened to cut off the victim's fingers, that he was armed with deadly weapon. [¶] So[,] I think the fact that they found this allegation under Count 4 true would strongly suggest that they were considering the comments made within the vehicle as that when he was armed with a knife."
The court, prior to sentencing defendant, observed that it had "looked at [section] 654, determines that Counts 1, 2, 3 are 654 to each other. They arise out of the same set of operative facts and circumstances. The violations served the same intent and objective. The Court finds that the defendant's course of conduct in Counts 4 and 5 constitute two separate and individual actions and are separate and individual actions. [¶] As to Counts 1, 2, and 3, I did listen to defense arguments here today. The Court's in agreement with the People. I believe that [criminal threats] in Count 4 and the [dissuading] in Count 5 are not 654 to each other and that they arise out of different facts as set forth by the People."
II. DISCUSSION
Defendant contends that the sentence on count 4 should be stayed pursuant to section 654. Defendant argues that the People elected as the factual basis for the criminal threats offense the statements made by defendant to the victim while he wielded the knife in the car. Thus, defendant maintains his objective in making the threat was part of the same course of conduct as wielding the knife, i.e., to assure the victim's compliance with the kidnapping. In the alternative, defendant contends the court should have given a unanimity instruction.
The People agree that the prosecutor elected as the factual basis for the criminal threats offense the statements made by defendant to the victim while he wielded the knife in the car. Nonetheless, the People contend defendant had a separate objective in threatening the victim, "to instill fear and psychologically torment" her. We agree with the People.
"'In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes[,] or the court must require the jury to agree on the same criminal act. [Citations.]' [Citation.]" (People v. Lueth (2012) 206 Cal.App.4th 189, 195-196.) "'In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction [e.g. CALCRIM No. 3500] should be given. [Citation.]'" (People v. Fernandez (2013) 216 Cal.App.4th 540, 555-556.) "'[W]hen the prosecution has made an election, under circumstances where a unanimity instruction would otherwise have been required, then we, too, are bound by that election.'" (People v. Vaughn (2022) 77 Cal.App.5th 609, 623; see People v. Brugman (2021) 62 Cal.App.5th 608, 628 ["[T]he prosecutor twice communicated a clear election during closing argument as to the incident that formed the basis for the charge in count 5."].)
We agree with the parties that the prosecutor elected as the factual basis for the criminal threats offense statements made by defendant to the victim while he wielded the knife in the car. Here, during closing argument, the prosecutor argued that the criminal threats offense occurred, "When [defendant is] in that car and he has that knife out, he tells her that he's going to kill her."
The prosecutor reconfirmed that election at sentencing by stating, "the allegation associated with the criminal threats charged in Count 4 was that he was personally armed with a weapon at that time. The [threats] did not occur at the time that the defendant told the victim that he would cut off her fingers if she called 911. Instead[,] it was the statement that he was going to kill her while armed with . . . the knife in the vehicle."
The prosecutor further argued, "that when the defendant made that threat, he was armed with a deadly weapon, and they found that allegation to be true. There was no evidence whatsoever that when [defendant] threatened to cut off the victim's fingers, that he was armed with deadly weapon. [¶] So I think the fact that they found this allegation under Count 4 true would strongly suggest that they were considering the comments made within the vehicle as that when he was armed with a knife." Thus, the prosecutor elected that the factual basis for the criminal threats offense consisted solely of the statements made by defendant to the victim while he wielded the knife in the car, which the jury necessarily found true by finding defendant guilty of that offense.
Because we agree with the parties that the prosecutor elected the factual basis for the criminal threats offense, we find it unnecessary to address defendant's alternative contention regarding whether the court should have sua sponte instructed the jury with a unanimity instruction.
"Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act-i.e., a course of conduct-do we then consider whether that course of conduct reflects a single '"intent and objective"' or multiple intents and objectives. [Citations.] At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. [Citation.]" (People v. Corpening (2016) 2 Cal.5th 307, 311-312.) Determining whether multiple convictions are based on a course of conduct or upon a single physical act where the facts are undisputed is "a question of law we review de novo." (Id. at p. 312.)
Both parties also agree that the criminal threats offense occurred during a course of conduct, rather than as a discrete physical act. We agree.
Here, the offenses for which the jury convicted defendant occurred over a course of time during which defendant threatened the victim, compelled her to go places to which she did not wish to go, inflicted multiple injuries upon her, and threatened her if she called the police. These were separate acts occurring over a course of time, in separate locations; thus, the acts were part of a course of conduct, rather than a single physical act. (People v. Corpening, supra, 2 Cal.5th at pp. 311-312 [carjacking and robbery constituted a single physical act for purposes of section 654]; compare with People v. Vasquez (2020) 44 Cal.App.5th 732, 739 [stabbing and biting of the victim occurred during a course of conduct].) Thus, the only remaining question is whether defendant, in threatening the victim, had a separate intent or objective from the kidnapping.
"'Section 654 precludes multiple punishment where an act or course of conduct violates more than one criminal statute but a defendant has only a single intent and objective. [Citation.] In such circumstances, the court must impose but stay execution of sentence on all of the convictions arising out of the course of conduct except for the offense with the longest sentence.' [Citation.] But '[i]f [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.' [Citation.] The sentencing court applies the preponderance of the evidence standard when determining whether the defendant entertained multiple criminal intents and objectives. [Citation.]" (People v. Jenkins (2021) 70 Cal.App.5th 924, 933934.)
"The temporal proximity of two offenses is insufficient by itself to establish that they were incidental to a single objective. [Citation.] Objectives may be separate when 'the objectives were either (1) consecutive even if similar or (2) different even if simultaneous.' [Citations.] Section 654 'cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense.' [Citation.]" (People v. Vasquez, supra, 44 Cal.App.5th at p. 737.)
"'Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense.' [Citation.] 'The trial court has broad latitude in determining whether section 654, subdivision (a) applies in a given case.' [Citation.] In analyzing whether section 654 bars the imposition of multiple sentences, we consider the evidence in the light most favorable to the judgment and affirm the trial court's sentencing decision-whether express or implied-if it is supported by substantial evidence. [Citations.] Under this standard, this court must view the evidence in the light most favorable to the trial court's finding and presume the existence of every fact the trial court could reasonably deduce from the record. [Citation.] Ultimately, '[i]f the trier of fact determines the crimes have different intents and motives, multiple punishments are appropriate.' [Citation.]" (People v. Vasquez, supra, 44 Cal.App.5th at p. 737.)
Although defendant had an overarching objective of ensuring the victim's compliance with the kidnapping, defendant did not inherently relinquish any capability of committing separate and independent acts unnecessary for the kidnapping. Defendant's threats were not requisite to accomplish the kidnapping because he had already obtained that objective; he had already subjugated the victim to comply. "It is analogous to a needless or vicious assault committed after a robbery, which has long been held separately punishable and distinguishable from an assault which is merely incidental to robbery." (People v. Foster (1988) 201 Cal.App.3d 20, 27-28; see People v. Nguyen (1988) 204 Cal.App.3d 181, 190 ["[G]ratuitous violence against a helpless and unresisting victim . . . has traditionally been viewed as not 'incidental' to robbery for purposes of . . . section 654."]; People v. Cleveland (2001) 87 Cal.App.4th 263, 271-272 [Sufficient evidence supported the court's determination that the defendant harbored divisible intents where his use of force was far more than necessary to accomplish the robbery.].)
Here, there was sufficient evidence that defendant had separate, severable criminal objectives when committing the kidnapping and criminal threats offenses. Defendant achieved the kidnapping by pulling out a pocketknife, which he had previously, frequently used to stab the victim in the leg. He held out the pocketknife in an open and threatening manner; he then told the victim to drive to the casino. The victim testified the knife was what motivated her to drive toward the casino.
Where the threat was at least potentially incidental to the kidnapping, the trial court could reasonably find that the subsequent threat "express[ed] a different and . . . more sinister goal than mere successful commission of the original crime" (People v. Nguyen, supra, 204 Cal.App.3d at p. 191), specifically, to magnify an already terrorizing ordeal. The court could reasonably determine that the subsequent threat was gratuitous. Thus, substantial evidence supported the court's imposition of an unstayed sentence on the criminal threats offense.
III. DISPOSITION
The judgment is affirmed.
We concur: RAPHAEL, J., MENETREZ, J.