Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Super.Ct.No. FVI025608, John M. Tomberlin, Judge.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Marissa Bejarano, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant guilty of attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a)) (count 1) and assault with a deadly weapon, to wit, a knife (§ 245, subd. (a)) (count 2). The jury also found true that defendant had personally used a deadly weapon in the commission of the attempted murder (§ 12022, subd. (b)(1)) and that he personally inflicted great bodily injury in the commission of both offenses (§ 12022.7, subd. (a)). In a separate proceeding, defendant admitted that he had sustained two prior prison terms. (§ 667.5, subd. (b).) Defendant was sentenced to an indeterminate term of life with the possibility of parole, plus a consecutive determinate term of 12 years as follows: life on count 1, plus three years for the great bodily injury enhancement, plus one year for the personal use enhancement, plus two 1-year terms for the two prison priors, and the midterm of three years on count 2, plus three years for the great bodily injury enhancement.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) his sentence on count 2 should have been stayed pursuant to section 654, and (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed a consecutive sentence and found that counts 1 and 2 were separate and independent crimes. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND
In 2006, Jesse Flores was living with Irene McMackin, his girlfriend for some 10 years. McMackin’s adult son (defendant) had been living with them on and off since Flores and McMackin started living together.
By August 2006, McMackin had allowed defendant and his girlfriend, Jessica, to move into the house without either Flores’s or the landlord’s permission. Flores eventually broke up with McMackin and had moved most of his items into storage. About the same time, the landlord evicted the group. To help out, Flores paid for a rental truck to move McMackin’s and defendant’s belongings into a storage unit, as well as to move a few of his belongings that still remained in the house. Defendant was upset at being evicted because he had nowhere else to go.
On the morning of August 4, 2006, Flores had a few “hits” off the methamphetamine pipe McMackin and defendant were sharing. Flores gave defendant the keys to the rental truck. Flores then rested. Defendant and McMackin planned to take the loaded rental truck to the storage unit. At the time, Flores had about $600 or $700 in cash in his pocket after paying for the rental truck.
Later that afternoon, Flores awoke from his nap and went to the kitchen to get some water. Defendant came in and asked Flores if he was going to help go unload the truck at the unit. Flores said “no” because he had helped load the truck, and defendant and his mother had been gone all day. Flores thought they had had enough time while he rested to go to the storage unit and unload the truck. McMackin was in the truck sleeping.
As Flores drank his water, defendant came behind him, held him across the chest, and slashed his throat from ear to ear with a box cutter. Defendant then left the kitchen. Flores, stunned, had difficulty breathing. He felt blood spurting out of his neck and then collapsed face forward to the floor. Desperate, Flores felt around and found a plastic shopping bag and pressed it to his throat to stop the bleeding. Flores then tried to get up, but slipped in his own blood (which now covered the floor) and hit his head on the washing machine.
Hearing the noise in the kitchen, defendant returned and grabbed the plastic bag from Flores’s throat. Flores struggled, and defendant grabbed Flores from behind and slashed Flores’s throat twice more. When Flores fell to the floor, defendant kicked him in the head, back, and shoulders. Defendant then flipped Flores onto his back. Flores faded in and out of consciousness, but he clearly remembered defendant searching his pockets. Defendant removed about $600 or $700 in cash from Flores’s pockets. Flores then feigned unconsciousness to avoid being further slashed, kicked, or stomped. Defendant, however, tried to smother Flores by holding a pillow over his face.
Defendant then hog-tied Flores’s legs, wrapped him in something, dragged him into the bathroom, and flipped him over into the bathtub. At this point, Flores heard McMackin calling 911, crying and screaming as she asked defendant what he had done to Flores. Flores heard McMackin make two 911 calls, with the first terminated when the telephone was slammed down as McMackin tried to talk with the 911 dispatcher.
Sheriff’s deputies responded. When the officers arrived, the door to the house was wide open, and they could hear a woman screaming. A strong odor of bleach was emanating from the house. The officers found Flores lying on the floor wrapped in a blood-soaked blanket with his feet bound with an extension cord. He was breathing very shallowly, and his neck was cut from under his ear to the center of his throat. Flores was transported via helicopter to Arrowhead Regional Medical Center.
The only other person in the house was McMackin, who had initially misled the police when she gave them names of possible suspects. She did not give defendant’s name. A neighbor informed the police of seeing a rental moving truck at Flores’s house about a half hour before the police arrived. Employees at the rental company called the police on the morning of August 5, after finding bloody items in their dumpster that had not been there at 4:00 p.m. the previous day. There was a bloody towel that smelled like bleach, a bleach bottle, and a large Hefty-type plastic bag with blood and other items belonging to defendant in it. DNA tests established that Flores’s blood was on the bleach bottle and other items, including a Leatherman-type multipurpose tool, found in the plastic bag. Defendant was eventually located and taken into custody.
After two weeks, Flores was transferred to the Veteran’s Administration Hospital, where he remained for some time. At the time of trial, Flores had a scar running across his throat. He had suffered damage to his vocal cords and had a scar from a deep tissue wound to his arm. In addition, he was still experiencing considerable pain from his wounds. Flores admitted at trial that he had an extensive criminal history.
II
DISCUSSION
A. Section 654 Issue
Defendant was charged with, and eventually convicted of, attempted premeditated murder (§§ 664, 187, subd. (a)) (count 1) and assault with a deadly weapon (§ 245, subd. (a)) (count 2).
At the sentencing hearing, defense counsel argued that count 2 should be stayed pursuant to both Blakely and section 654, since defendant had a single intent and objective of killing the victim when he committed both crimes. The trial court disagreed, finding the offenses involved separate and independent acts.
Defendant contends he committed the attempted murder and aggravated assault with a single intent and objective, to kill Flores, and therefore the three years for the assault conviction should have been stayed pursuant to section 654.
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 precludes multiple punishments not only for a single act, but also for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) Whether a course of 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. (People v. Norrell (1996) 13 Cal.4th 1, 6.) The Supreme Court has long applied section 654 to preclude multiple punishment where multiple acts or offenses were committed incident to a single intent and objective. (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless it is not supported by substantial evidence. (People v. Saffle (1992) 4 Cal.App.4th 434, 438, cited and approved on this point in People v. Osband (1996) 13 Cal.4th 622, 730.) The court’s findings may be either express or implied from the court’s ruling. (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585.)
One relevant consideration in determining whether multiple crimes should be considered severable for section 654 purposes is the “‘temporal proximity’” of the crimes. (People v. Evers (1992) 10 Cal.App.4th 588, 603, fn. 10.) Where the offenses are “‘separated by periods of time during which reflection was possible,’” section 654 does not prohibit multiple punishment. (People v. Surdi (1995) 35 Cal.App.4th 685, 689 (Surdi), quoting People v. Trotter (1992) 7 Cal.App.4th 363, 368 (Trotter).)
In Trotter, supra, 7 Cal.App.4th 363, the defendant was convicted of three counts of assault for firing three shots at a police officer who was following him during a freeway chase. The first two shots were about a minute apart, and the third shot came a few seconds later. (Id. at p. 366.) The defendant argued that all three shots “manifested the same intent and criminal objective” and therefore could not be punished separately under section 654. (Trotter, at p. 367.)
The court rejected the argument, stating that “this was not a case where only one volitional act gave rise to multiple offenses. Each shot required a separate trigger pull. All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible. None was spontaneous or uncontrollable. ‘[D]efendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior.’ [Citation.]” (Trotter, supra, 7 Cal.App.4th at p. 368.)
In Surdi, supra, 35 Cal.App.4th 685, members of a gang beat the victim and took him inside a van, where they stabbed him. Eventually, they drove the victim to a riverbed and took turns stabbing him some more while another assailant kicked him. The defendant, one of the attackers, argued that section 654 prohibited separate punishment for kidnapping and mayhem, because the kidnapping was for the sole purpose of beating the victim. (Surdi, at p. 688.)
The court rejected the argument, finding that the kidnapping and mayhem “did not arise from a single volitional act. Rather, they were separated by considerable periods of time during which reflection was possible. . . . [¶] The fact Surdi assisted multiple stabbing episodes, each of which evinced a separate intent to do violence, precludes application of section 654 with respect to the offenses encompassed within the episodes.” (Surdi, supra, 35 Cal.App.4th at pp. 689-690.)
The evidence in the present case similarly showed an attack which, though it involved an assault on a single victim as in Trotter and Surdi, also “did not arise from a single volitional act” but rather comprised acts that “were separated by considerable periods of time during which reflection was possible.” (Surdi, supra, 35 Cal.App.4th at p. 689.) At trial, Flores testified that defendant came up behind him, slit his throat from ear to ear, and then left the kitchen. Flores fell to the ground and grabbed a plastic bag to cover the bleeding. Flores then attempted to get up, but slipped in his own pool of blood and hit his head on the washing machine. Hearing the noise, defendant then came back into the kitchen area, grabbed the plastic bag from Flores’s hand, and the two began fighting. Defendant thereafter began cutting Flores again. After defendant cut Flores two more times and Flores fell to the floor, defendant started kicking Flores’s head and stomping on Flores’s body. Flores feigned unconsciousness to avoid being further slashed, kicked, or stomped. However, defendant continued to attack Flores by trying to smother him with a pillow. Even after Flores played dead by dropping his arms and offering no further resistance, defendant hog-tied Flores’s legs, wrapped him in a blanket, dragged him into the bathroom, and flipped him over into the bathtub.
From this testimony, the trial court could reasonably infer that defendant committed separate and independent acts. In other words, defendant could have broken off his attack following the initial cutting of Flores’s throat and leaving the area. At that point, the initial crime was complete. Instead, after defendant heard a noise in the kitchen, he came back, grabbed the plastic bag from Flores, and continued to cut him, knock him to the ground, beat him until he no longer resisted, and tie him after he stopped moving entirely. Defendant’s initial attack on Flores was separated from his subsequent conduct by a period of time during which he had the opportunity to reflect and to form a divisible intent to murder Flores over and above the initial crime of assault. The trial court here could have reasonably concluded that defendant harbored multiple criminal intents.
We note that a unanimity instruction (Judicial Council of Cal., Crim. Jury Instns. (2007-2008) CALCRIM No. 3500) was given in this case.
In People v. Coleman (1989) 48 Cal.3d 112, the Supreme Court found consecutive, separate intents supported separate punishment for robbing the victim and later assaulting her by stabbing her. Between the robbery and the assault, the defendant had murdered a second victim in the same house. The court noted that “[p]rior to the assault, defendant had essentially completed the robbery,” and therefore the trial court could find he assaulted the victim for a different purpose, to keep her from reporting the murder. (Id. at pp. 162-163.) The facts here show that defendant first assaulted the victim with a box cutter, broke off that attack, left the scene, and returned sometime later. The court could infer that a considerable period of time elapsed between defendant initially assaulting Flores and later slashing his throat twice more, kicking him, trying to smother him, hog-tying him, and throwing him into the bathtub, during which defendant had time to form a separate objective of inflicting a separate injury — the attempted murder. (See People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 12 [stating, in dictum, that a defendant may be punished separately where his additional act of violence against the same victim “was not part of defendant’s original objective but was subsequently conceived in response to an unexpected event occurring during commission of the underlying crime”].)
Supreme Court dictum “‘carries persuasive weight and should be followed where it demonstrates a thorough analysis of the issue or reflects compelling logic. [Citations.]’ [Citation.]” (People v. Smith (2002) 95 Cal.App.4th 283, 300.) Beamon’s dictum came at the end of a thorough analysis of the criteria for finding separate objectives under section 654 and therefore should be followed here. (People v. Beamon, supra, 8 Cal.3d at pp. 636-640.)
In addition, the case is analogous to cases involving an attempted murder or assault on a robbery victim after the completion of the robbery. Those cases hold that the robbery and the subsequent attack on the victim merit separate punishment. (See, e.g., People v. Coleman, supra,48 Cal.3d at pp. 162-163 [“[p]rior to the assault, defendant had essentially completed the robbery”].) As the court in People v. Nguyen (1988) 204 Cal.App.3d 181, explained, “gratuitous violence against a helpless and unresisting victim . . . has traditionally been viewed as not ‘incidental’ to robbery for purposes of Penal Code section 654.” (Id. at p. 190.) Contrary to defendant’s claim, this case involved just such “gratuitous violence against a helpless and unresisting victim” after the initial attack was complete. Here, the court reasonably could conclude that continuing the attack, once Flores had fallen to the ground and defendant had left the area, and still later when Flores feigned unconsciousness, showed an intent to kill Flores which was separate from, not incidental to, the intent to commit the assault.
For the first time in his reply brief, defendant contends that the court erred in the dual use of facts by relying on the nature of the offense (the second knife attack) to both impose the life sentence and the six-year consecutive sentence for count 2. Appellate courts will not generally recognize issues first raised in a reply brief. (People v. Mitchell (1995) 36 Cal.App.4th 672, 674, fn. 1.) “Withholding a point until the reply brief deprives the respondent of an opportunity to answer it . . . . Hence, a point raised for the first time therein is deemed waived and will not be considered, unless good reason is shown for failure to present it before. [Citations.]” (People v. Baniqued (2000) 85 Cal.App.4th 13, 29, fn omitted.) No good cause is shown here. Thus, defendant has waived this point.
We find that substantial evidence supported the trial court’s imposition of consecutive terms for counts 1 and 2.
B. Blakely Issue
Defendant next contends that the imposition of consecutive sentences violates his constitutional rights to due process and a jury trial, because no jury determined beyond a reasonable doubt the separate and independent acts to permit the court to impose consecutive sentences as required by Blakely, supra, 542 U.S. 296 and Apprendi, supra,530 U.S. 466.
In Blakely, the United States Supreme Court revisited the rule articulated in Apprendi that “‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Blakely, supra, 542 U.S. at p. 301.)
In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 860, 166 L.Ed.2d 856] (Cunningham), the high court overruled, in part, the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), which held, among other things, that the provisions of California’s determinate sentencing law authorizing the trial court to find the facts permitting an upper term sentence did not violate a defendant’s right to a jury trial. (Cunningham, at p. 860.) The United States Supreme Court concluded that because our determinate sentencing law “authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Id. at p. 871, fn. omitted.)
However, Cunningham reaffirmed the exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] (Almendarez-Torres) and affirmed in Apprendi: “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]” (Cunningham, supra, 127 S.Ct.at p. 860, italics added; see also Apprendi, supra, 530 U.S. at pp. 488, 490.)
In Cunningham, the defendant had no prior criminal history; the sentencing judge imposed the upper term in reliance on such factors as the particular vulnerability of the victim and the violence of the crime. (Cunningham, supra, 127 S.Ct. at pp. 860-861.)
The California Supreme Court recently decided People v. Black (2007) 41 Cal.4th 799 (Black II). There, the court held that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813, fn. omitted.) Accordingly, if the trial court has found at least one aggravating factor that falls within the Almendarez-Torres exception, the federal Constitution does not preclude it from imposing an upper term sentence based on that plus other aggravating factors, including factors that do not fall within the Almendarez-Torres exception. (Black II, at pp. 819-820.)
Our high court in Black II, supra, 41 Cal.4th 799 also held for a second time that the determination whether two or more sentences should be served consecutively is a “‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’” (Id. at p. 823, quoting Black I, supra, 35 Cal.4th at p. 1264.) In Black II, the Supreme Court stated bluntly: “Accordingly, we again conclude that defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences on all three counts.” (Black II, at p. 823.) Thus, the California Supreme Court has rejected defendant’s notion that the United States Supreme Court’s opinions in Blakely, Apprendi, and Cunningham cast doubt on the constitutionality of the imposition of consecutive sentences in the absence of jury findings. In light of Black II, defendant’s challenge is without merit.
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., GAUT, J.