Opinion
E068998
03-18-2019
THE PEOPLE, Plaintiff and Respondent, v. RODOLFO DEHOYOS, Defendant and Appellant.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING NO CHANGE IN JUDGMENT
THE COURT:
The opinion herein, filed on March 18, 2019, is modified as follows: The fifth sentence on page two is deleted and replaced with:
In this appeal, defendant first argues that, with the exception of count 65, the sentences for all 84 of the concurrently imposed, nonstayed counts should be stayed under section 654, rather than run concurrently.
There is no change in the judgment.
Appellant's petition for rehearing is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1502647) OPINION APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Rodolfo DeHoyos pled guilty to 143 fraud- and theft-related charges resulting from his efforts to obtain payments from 59 separate businesses in Riverside County. Defendant threatened to sue the businesses for alleged violations of the Americans with Disabilities Act (ADA) unless they agreed to pay him. The court imposed consecutive sentences on 58 of the counts, which resulted in a term of 60 years in county jail. The court suspended 40 of those years, during which defendant will be under mandatory supervision. In this appeal, defendant first argues the court should have stayed all but one of the 143 sentences because imposing them violates Penal Code section 654. In the alternative, defendant more reasonably argues that the court should have stayed the 36 sentences imposed for multiple crimes based on a single contact (by letter or telephone call) with each victim. This echoes the People's position at trial and in this appeal. We agree and direct the trial court to stay these 36 counts.
On pages 9 through 17 of the appellant's opening brief, defendant has provided a table listing each of the counts, along with the corresponding state Penal Code statute, victim, and sentence imposed. This table is reproduced at appendix A, post, at pages 10-18.
FACTS AND PROCEDURE
Starting in December 2013 and continuing through April 2015, defendant implemented a scheme to scare numerous, mostly small, businesses throughout the state into paying him money to avoid threatened lawsuits over minor violations of the ADA. To carry out this scheme, defendant started a business called ADA Advocates and Consulting. Defendant or a person he hired would briefly enter a business for the sole purpose of finding one or more small ADA violations such as a missing sign or faded paint. They would then fill out a preprinted form with a checklist of ADA violations and hand it to someone at the business. The versions of the form contained in this record list defendant's business and contact information, and include headings such as "Preliminary Independent Review Of Possible ADA Access Violations & Civil Rights Discrimination," "3 day Notice of Intent to comply with the new laws," and "Property Owners Notice." The forms state that only an inspection and report by a licensed inspector would protect the business if it were sued, and that defendant's business could provide that service for a fee. None of the charges in this criminal case are based on these forms.
As relevant to this appeal, defendant or the person he hired would, during the same visit, provide a letter threatening to file a lawsuit. The letter stated the business could avoid the lawsuit by paying money directly to defendant within three business days. This initial contact with the demand letter is the basis for the 58 charges of extortion by letter (§ 523) and one count of attempted grand theft (§§ 664, 487). In some cases, the People filed additional charges for attempted extortion (§§ 664, 518) and attempted grand theft (§§ 664, 487), also based on this initial contact with the demand letter. Each of these additional counts must be stayed, for the reasons discussed post.
The letter to Stater Bros. Market generated the single charge of attempted grand theft (§§ 664, 487) at count 65. Defendant received a concurrent term of one year for this count.
Regarding many of the victims, defendant would follow up the letter with a telephone call (or the victim would call defendant at the telephone number listed in the letter), and defendant would repeat his demand for payment and threaten to file a lawsuit that could cost $25,000 to $35,000. During these phone calls, defendant would claim that he was disabled, and the business had violated his civil rights by denying him access. These phone calls are the basis for some of the charges for attempted grand theft (§§ 664, 487), attempted extortion (§§ 664, 518), grand theft (§ 487) and misdemeanor theft (§ 487). In some cases, the People filed more than one of these charges based on a single telephone call. These additional counts based on a single telephone call are among those that must be stayed, for the reasons discussed post.
Of the 59 businesses identified in the second amended complaint, 25 paid defendant amounts ranging from $363 to $5,000.
On November 29, 2016, the People filed a second amended complaint charging defendant with 143 counts, consisting of 58 counts of extortion by letter (§ 523), 36 counts of attempted grand theft (§§ 664, 487), 19 counts of grand theft (§ 487), 17 counts of extortion (§ 518), seven counts of attempted extortion (§§ 664, 518), three counts of misdemeanor theft (§ 487), one count of misdemeanor attempted theft (§§ 664, 487), one count of embezzlement (§ 503), and one count of elder abuse (§ 368). On that same date, defendant pled guilty to all charges in an open plea to the court.
Sentencing was initially set for February 3, 2017, but was postponed several times and finally held on August 14, 2017. After having read the sentencing memos and hearing argument from both parties, the court sentenced defendant to a total of 60 years—20 years in local custody and 40 years on home supervision. To get the 60 years, the court sentenced defendant to the middle term of three years for count 53, extortion by letter (§ 523), pertaining to the victim Old Town Tire Services, followed by 57 consecutive terms of one year (one-third the middle term) for the remaining counts of extortion by letter, one count for each victim.
The court imposed each of the remaining the sentences concurrently as follows: one year for each of the 36 counts of felony attempted grand theft (§§ 664, 487); two years for each of the 19 counts of grand theft (§ 487); three years for each of the 17 counts of extortion (§ 518); two years for each of the seven counts of attempted extortion (§ 664, 518); 180 days each on the three counts of misdemeanor theft (§ 487); 90 days for the one count of misdemeanor attempted theft (§§ 664, 487); a two-year term for the one count of embezzlement (§ 503); and a three-year term for the one count of elder abuse (§ 368). The court stated that, for multiple counts based on the same act under section 654, running the terms concurrently would resolve the section 654 issue.
This appeal followed.
DISCUSSION
Defendant argues that, with the exception of count 65, the sentences for all 84 of the concurrently imposed, nonstayed counts should be stayed under section 654, rather than run concurrently. This is because as to each of the 58 victims of extortion by letter there was only one continuous transaction, and defendant had only one intent and objective—to obtain payment—even regarding the victims with whom defendant made multiple contacts, including a telephone call, in pursuit of payment.
In the alternative, defendant argues the sentences for 36 of the counts should be stayed because they are based on the same specific acts (letter or telephone call) for which the court imposed another sentence. The People argued this in the trial court, and in this appeal, and we agree that these 36 counts should be stayed, rather than run concurrently.
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." Section 654 protects against multiple punishment rather than multiple conviction. (People v. Deloza (1998) 18 Cal.4th 585, 591-592; People v. Harrison (1989) 48 Cal.3d 321, 335.) A defendant thus may not be punished for two separate crimes that arise either out of a single act or out of an indivisible transaction. (People v. Ortega (1998) 19 Cal.4th 686, 693; People v. James (1977) 19 Cal.3d 99, 119-120.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the actor. (People v. Harrison, supra, 48 Cal.3d at p. 335.) Thus, if all of the offenses were incident to one objective, the defendant may be punished for only one of them. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) "On the other hand, if the evidence discloses that a defendant entertained 'multiple criminal objectives which were independent of and not merely incidental to each other, he 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.' [Citations.]" (In re Adams (1975) 14 Cal.3d 629, 634.) Further, section 654 does not bar multiple punishment where temporal separation of offenses afford a defendant an opportunity to reflect and to renew his or her intent before committing the next offense. (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
The defendant's intent and objective are factual questions for the trial court. (People v. Coleman (1989) 48 Cal.3d 112, 162.) The court's finding, whether express or implied, will be upheld on appeal if supported by substantial evidence. (People v. Powell (2011) 194 Cal.App.4th 1268, 1296.) We review the trial court's determination in the light most favorable to the respondent, and we presume the existence of every fact the trial court could have reasonably deduced from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Here, section 654 prohibits multiple punishment on the multiple counts that involved a single contact with a single victim but does not prohibit punishment for additional contacts with each victim, nor for contacts with multiple victims. In other words, section 654 allows defendant to be separately punished for the first and each subsequent contact with each victim. This is because each time defendant contacted a victim for the first time, and each time he subsequently contacted each victim, he had time to consider that he was breaking the law and to renew his intent to break the law yet again. However, where defendant contacted a victim only a single time by letter, or a single time by telephone, defendant can be punished for only one crime based on that single contact.
The court did not meet the requirements of section 654 by running the 36 counts concurrently. A concurrent sentence is still punishment, and so imposing concurrent sentences is not the proper way to implement section 654, which prohibits multiple "punish[ment]" for an act or omission that violates more than one criminal provision. "Accordingly, rather than . . . imposing concurrent sentences, when a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicate sentence." (People v. Duff (2010) 50 Cal.4th 787, 796.)
The specific application of these rules results in the following change to the sentence ordered by the court. Regarding the victims to whom defendant sent a single letter, or with whom he engaged in a single phone call, but was also charged with a related theft, extortion, or attempted theft or extortion count for that single letter or phone call, the punishment for the related count should be stayed. The trial court is directed to order the punishment stayed for the following counts: 10, 11, 19, 22, 25, 28, 35, 38, 43, 46, 51, 54, 58, 61, 64, 68, 73, 76, 77, 79, 81, 90, 93, 97, 112, 113, 115, 118, 120, 122, 128, 131, 133, 139, 141, and 143.
DISPOSITION
The trial court is directed to amend the abstract of judgment to stay the execution of the 36 sentences listed immediately above and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.
Appendix A
Victim Count Charge Sentence TR Auto Body 1 Pen. Code § 523 1-year consecutive [1/3 midterm] 2 § 664, 487(a) Concurrent 1-year midterm Cowgirl Café 3 § 523 1-year consecutive [1/3 midterm] 4 § 664, 487(a) Concurrent 1-year midterm Kendra Chiropractic 5 § 523 1-year consecutive [1/3 midterm] 6 § 664, 487(a) Concurrent 1-year midterm Linda's Feed 7 § 523 1-year consecutive [1/3 midterm] 8 § 664, 487(a) Concurrent 1-year midterm Norco Rentals 9 § 523 1-year consecutive [1/3 midterm] 10 § 664, 487(a) Concurrent 1-year midterm Norco Trailers 11 § 664, 518 Concurrent 2 years midterm 12 § 523 1-year consecutive [1/3 midterm] 13 § 664, 487(a) Concurrent 1-year midterm Reidy Realty 14 § 523 1-year consecutive [1/3 midterm] 15 § 368(d) Concurrent 3 years midterm 16 § 664, 487(a) Concurrent 1-year midterm 12 Victim Count Charge Sentence Racks Billiards & Bourbon 17 § 518 Concurrent 3 years midterm 18 § 523 1-year consecutive [1/3 midterm] 19 § 487(a) [$900] (misdemeanor) Concurrent 180 days in jail Tienda Tzuluma 20 § 664, 518 Concurrent 2 years midterm 21 § 523 1-year consecutive [1/3 midterm] 22 § 664, 487(a) Concurrent 1-year midterm American Inn & Suites 23 § 518 Concurrent 3 years midterm 24 §523 1-year consecutive [1/3 midterm] 25 § 487(a) [$2,500] Concurrent 2 years midterm Music Mike's 26 § 664, 518 Concurrent 2 years midterm 27 § 523 1-year consecutive [1/3 midterm] 28 § 664, 487(a) Concurrent 1-year midterm Life Bridge Church 29 § 523 1-year consecutive [1/3 midterm] 30 § 664, 487(a) Concurrent 1-year midterm Westwood Club 31 § 523 1-year consecutive [1/3 midterm] 32 § 664, 487(a) Concurrent 1-year midterm 13 Victim Count Charge Sentence Z Performance Auto Repair & Muffler 33 § 518 Concurrent 3 years midterm 34 § 523 1-year consecutive [1/3 midterm] 35 § 487(a) [$363] (misdemeanor) Concurrent 180 days in jail Pro Tires & Wheel 36 § 518 Concurrent 3 years midterm 37 § 523 1-year consecutive [1/3 midterm] 38 § 487(a) [$1,000] Concurrent 2 years midterm CJJ Enterprises- KFC 39 § 523 1-year consecutive [1/3 midterm] 40 § 664, 487(a) Concurrent 1-year midterm Gables Residential Services 41 § 518 Concurrent 3 years midterm 42 § 523 1-year consecutive [1/3 midterm] 43 § 487(a) [$2,000] Concurrent 2 years midterm Murrieta Valley Funeral Home 44 § 518 Concurrent 3 years midterm 45 § 523 1-year consecutive [1/3 midterm] 46 § 487(a) [$2,500] Concurrent 2 years midterm Precision Auto Import 47 § 523 1-year consecutive [1/3 midterm] 48 § 487(a) [$898] (misdemeanor) Concurrent 180 days in jail 14 Victim Count Charge Sentence Quality Nissan 49 § 518 Concurrent 3 years midterm 50 § 523 1-year consecutive [1/3 midterm] 51 § 487(a) [$2,495] Concurrent 2 years midterm Old Town Tire Services 52 § 664, 518 Concurrent 2 years midterm 53 § 523 3 years [midterm] PRINCIPAL 54 § 664, 487(a) Concurrent 1-year midterm KSY Investments 55 § 503 Concurrent 2 years midterm 56 § 518 Concurrent 3 years midterm 57 § 523 1-year consecutive [1/3 midterm] 58 § 487(a) [$1,895] Concurrent 2 years midterm Western Exterminator 59 § 518 Concurrent 3 years midterm 60 § 523 1-year consecutive [1/3 midterm] 61 § 487(a) [$3,000] Concurrent 2 years midterm Walnut Grove Medical Center 62 § 518 Concurrent 3 years midterm 63 § 523 1-year consecutive [1/3 midterm] 64 § 487(a) [$4,750] Concurrent 2 years midterm Stater Bros. Market 65 § 664, 487(a) Concurrent 1-year midterm 15 Victim Count Charge Sentence America's Best Value Inn 66 § 518 Concurrent 3 years midterm 67 § 523 1-year consecutive [1/3 midterm] 68 §487(a) [$2,000] Concurrent 2 years midterm Yankee Investments 69 § 523 1-year consecutive [1/3 midterm] 70 § 664, 487(a) Concurrent 1-year midterm Don Jose's Mexican Restaurant 71 § 518 Concurrent 3 years midterm 72 § 523 1-year consecutive [1/3 midterm] 73 § 487(a) [$2,500] Concurrent 2 years midterm Wendy's 74 § 518 Concurrent 3 years midterm 75 § 523 1-year consecutive [1/3 midterm] 76 § 487(a) [$5,000] Concurrent 2 years midterm Cougar Winery 77 § 664, 518 Concurrent 2 years midterm 78 § 523 1-year consecutive [1/3 midterm] 79 § 664, 487(a) Concurrent 1-year midterm Frangipani Winery 80 § 523 1-year consecutive [1/3 midterm] 81 § 664, 487(a) Concurrent 1-year midterm Sunstate Equipment Company 82 § 523 1-year consecutive [1/3 midterm] 83 § 664, 487(a) Concurrent 1-year midterm 16 Victim Count Charge Sentence De La Pena Eye Clinic 84 § 523 1-year consecutive [1/3 midterm] 85 § 664, 487(a) Concurrent 1-year midterm IHOP No. 834 86 § 523 1-year consecutive [1/3 midterm] 87 § 487(a) [$3,000] Concurrent 2 years midterm Econo Lube 88 § 518 Concurrent 3 years midterm 89 § 523 1-year consecutive [1/3 midterm] 90 § 487(a) [$1,200] Concurrent 2 years midterm City Center Motel/ Deluxe Inn 91 § 518 Concurrent 3 years midterm 92 § 523 1-year consecutive [1/3 midterm] 93 § 487(a) [$5,000] Concurrent 2 years midterm Tax Solutions 94 § 523 1-year consecutive [1/3 midterm] 95 § 664, 487(a) (misdemeanor) Concurrent 90 days in jail Shakey's Pizza 96 § 523 1-year consecutive [1/3 midterm] 97 § 664, 487(a) Concurrent 1-year midterm GT Imports 98 § 523 1-year consecutive [1/3 midterm] 99 § 664, 487(a) Concurrent 1-year midterm 17 Victim Count Charge Sentence Sun City Hardware 100 § 523 1-year consecutive [1/3 midterm] 101 § 664, 487(a) Concurrent 1-year midterm Riverside Truck & Equipment 102 § 523 1-year consecutive [1/3 midterm] 103 § 487(a) [$5,000] Concurrent 2 years midterm Blanchard Signs & Banners 104 § 523 1-year consecutive [1/3 midterm] 105 § 664, 487(a) Concurrent 1-year midterm Flexsteel 106 § 523 1-year consecutive [1/3 midterm] 107 § 664, 487(a) Concurrent 1-year midterm World Liquor 108 § 523 1-year consecutive [1/3 midterm] 109 § 664, 487(a) Concurrent 1-year midterm Aero Tech Surveys 110 § 518 Concurrent 3 years midterm 111 § 523 1-year consecutive [1/3 midterm] 112 § 487(a) [$3,500] Concurrent 2 years midterm Marcello's Pizza 113 § 664, 518 Concurrent 2 years midterm 114 § 523 1-year consecutive [1/3 midterm] 115 §487(a) [$—] (exceeding $950) Concurrent 2 years midterm 18 Victim Count Charge Sentence Antone's Italian Food 116 § 523 1-year consecutive [1/3 midterm] 117 § 664, 487(a) Concurrent 1-year midterm Brockton Physical Therapy 118 § 664, 518 Concurrent 2 years midterm 119 § 523 1-year consecutive [1/3 midterm] 120 § 487(a) [$—] (exceeding $950) Concurrent 2 years midterm Michael P. Taylor CPA 121 § 523 1-year consecutive [1/3 midterm] 122 § 664, 487(a) Concurrent 1-year midterm 1st Choice Property Management 123 § 523 1-year consecutive [1/3 midterm] 124 § 664, 487(a) Concurrent 1-year midterm Wylie Center 125 § 523 1-year consecutive [1/3 midterm] 126 § 664, 487(a) Concurrent 1-year midterm Nat R. Shain, DDS 127 § 523 1-year consecutive [1/3 midterm] 128 § 664, 487(a) Concurrent 1-year midterm Econo Lodge 129 § 518 Concurrent 3 years midterm 130 § 523 1-year consecutive [1/3 midterm] 131 § 487(a) [$2,500] Concurrent 2 years midterm 19 Victim Count Charge Sentence Allen Properties- Concord Place Apts. 132 § 523 1-year consecutive [1/3 midterm] 133 § 664, 487(a) Concurrent 1-year midterm Jurupa Royal Apts. 134 § 523 1-year consecutive [1/3 midterm] 135 § 664, 487(a) Concurrent 1-year midterm Western Dental 136 § 523 1-year consecutive [1/3 midterm] 137 § 664, 487(a) Concurrent 1-year midterm Casa Loma College 138 § 523 1-year consecutive [1/3 midterm] 139 § 664, 487(a) Concurrent 1-year midterm Orchard Parks Apts. 140 § 523 1-year consecutive [1/3 midterm] 141 § 664, 487(a) Concurrent 1-year midterm King Arthur's Mobile Home Estates 142 § 523 1-year consecutive [1/3 midterm] 143 § 664, 487(a) Concurrent 1-year midterm