Opinion
F075537
09-23-2019
THE PEOPLE, Plaintiff and Respondent, v. DEMAREY DE-RON FELIX, Defendant and Appellant.
Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MF012196A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Demarey De-Ron Felix was convicted of kidnapping and multiple assault counts arising out of an incident where he drove his girlfriend from Las Vegas, Nevada, to California by force and committed several acts of violence along the way. He appeals the judgment of his sentence. He contends the trial court violated Penal Code section 654's prohibition against multiple punishment by executing consecutive sentences on two assault with a deadly weapon counts. We affirm.
All further undesignated statutory references are to the Penal Code.
FACTUAL BACKGROUND
On August 1, 2016, California residents, appellant and his girlfriend, Priscilla F., were in Las Vegas visiting his family. They were staying at appellant's aunt's house. In the afternoon of August 1, appellant got angry at Priscilla because he thought she was "looking at his cousin too much" and accused Priscilla of being unfaithful with his cousin. They started arguing, and eventually appellant punched Priscilla in her face with his closed fist, which caused her mouth to bleed. Appellant took Priscilla into a room and locked her inside. While inside the room, appellant hit Priscilla, stomped on her with his shoes on, and punched her. According to Priscilla, appellant inflicted "[a]ny type of injury he could." Two of appellant's cousins were in the room at the time, and at one point, appellant told one of his cousins to go get a gun because appellant was going to shoot Priscilla in the leg to teach her a lesson. Appellant's cousin returned with a gun, but it was not loaded. Appellant told his cousin to get the clip for the gun, but his cousin refused, so appellant "pistol-whipped" Priscilla. Appellant slapped Priscilla across the face with the gun two or three times and struck her with the gun in her chest, which left a scar. Appellant told Priscilla that if she was telling the truth about not being with his cousin, then she would sit there and let him hit her.
We refer to Priscilla by her first name to protect her privacy. No disrespect is intended.
Because appellant and Priscilla were yelling, appellant's aunt told them to leave. Appellant grabbed Priscilla by the hair, took her downstairs and out to her car. Priscilla did not feel free to say no. Appellant put Priscilla in the car by holding on to her hair. When they started driving, appellant rolled up the windows, put the window lock on, and made Priscilla sit with her legs and arms in appellant's lap, so she would not try to get out.
Appellant eventually stopped behind a gas station in Baker, California. Appellant told Priscilla to get out of the car. Appellant then retrieved a set of jumper cables from the trunk, and chased Priscilla around the car while whipping her with the cables until they broke. Once the cables broke, Priscilla ran toward a tree line away from appellant, lied down and either fell asleep or passed out.
When Priscilla woke up, appellant had grabbed her by the hair asking her whom she had called. Appellant then got into the car and drove away, and Priscilla walked across the street about a mile into the desert. She saw appellant driving around looking for her. Priscilla's plan was to stay out of appellant's way until he calmed down. After a while, Priscilla started to walk back towards the gas station and got in the car because appellant had water and it was the only way for her to get home.
At some point while in Baker, appellant hit Priscilla in the head with a two-by-four board that was in the car.
Eventually, Priscilla was able to call 911 from the vehicle. Other drivers also reported appellant for reckless driving. California Highway Patrol officers performed a traffic stop on appellant in Kern County.
Priscilla testified to five other instances of appellant inflicting domestic violence against her that spanned over their entire three-year dating relationship.
PROCEDURAL BACKGROUND
Appellant was charged by amended information with kidnapping (§ 207, subd. (a); count 1); infliction of corporal injury on a cohabitant (§ 273.5, subd. (a); count 2); assault with a deadly weapon—a pistol (§ 245, subd. (a)(1); count 3); assault with a deadly weapon—jumper cables (§ 245, subd. (a)(1); count 4); assault with a deadly weapon—two-by-four (§ 245, subd. (a)(1); count 5), dissuading a witness (§ 136.1, subd. (b)(1); count 6); and resisting arrest, a misdemeanor (§ 148, subd. (a)(1); count 7). As to count 1, it was further alleged that appellant personally inflicted great bodily injury upon Priscilla (§ 12022.7, subd. (e)); personally used a deadly or dangerous weapon—a two-by-four (§ 12022, subd. (b)(1)); personally used a deadly or dangerous weapon—jumper cables (§ 12022, subd. (b)(1)); and personally used a deadly or dangerous weapon—a pistol (§ 12022, subd. (b)(1)). As to count 2, it was further alleged that he inflicted great bodily injury onto Priscilla (§ 12022.7, subd. (e)).
At the close of the prosecution's case-in-chief, appellant entered a change of plea and pled no contest to every count with which he was charged and admitted all enhancement allegations.
Appellant was sentenced to the upper term of eight years on count 1; consecutive terms of one-year each (one-third the middle term) on counts 4 and 5; a consecutive term (the middle term) of two years on count 6; and a concurrent one-year term on count 7. As for the count 1 enhancements, he was sentenced to a four-year term pursuant to section 12022.7, subdivision (e) and a one-year term pursuant to section 12022, subdivision (b)(1). The court stayed the sentences imposed on counts 2 and 3 pursuant to section 654, as well as the jumper cables and two-by-four weapon enhancements attached to count 1 and the great bodily injury enhancement attached to count 2. Appellant's total prison sentence was 17 years.
DISCUSSION
Appellant argues the trial court imposed consecutive sentences for the counts of assault with a deadly weapon involving the jumper cables (count 4) and the two-by-four (count 5) in violation of section 654's prohibition against multiple punishment. We disagree.
Section 654, subdivision (a) reads in 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 has been applied not only where there was but one 'act' in the ordinary sense . . . but also where a course of conduct violated more than one statute . . . within the meaning of section 654." [Citation.] [¶] 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 the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (People v. Beamon (1973) 8 Cal.3d 625, 637, italics omitted.)
We review a trial court's determination that appellant had separate intents for " 'sufficient evidence in a light most favorable to the judgment, and presume in support of the [trial] court's conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence.' " (People v. Andra (2007) 156 Cal.App.4th 638, 640-641.) Here, the trial court found the assaults constituted separate acts of violence against the victim, with separate use of weapons.
Appellant repeatedly quotes the trial court as saying the assaults constituted "completely unrelated behavior." The quote in context is as follows: "As to Counts 4, 5, and 6, the Court does find that consecutive sentencing is justified in that all three counts involved separate acts of violence against the victim, with separate use of weapons upon the victim in Counts 4 and 5, and for Count 6 that they involved separate acts of violence from the charges listed previously, in completely unrelated behavior, with a different operative fact and intent and motive in committing witness intimidation." (Italics added.) It is our view in the context of the court's comments as a whole that the court was referring to the facts which supported count 6 when it said, "completely unrelated behavior." --------
Appellant contends substantial evidence does not support the conclusion that he harbored intents and objectives for the two assaults separate from that of the kidnapping. He contends the assaults with the jumper cables and the two-by-four were part of an indivisible transaction committed against one victim that had one intent and objective— to sustain an on-going kidnapping. In support, he maintains his case is like People v. Latimer (1993) 5 Cal.4th 1203. In Latimer, the defendant kidnapped the victim, drove her into a desert, raped her, and left her behind. (Id. at p. 1205.) The Supreme Court concluded that even though the kidnapping and the rapes were separate acts, the evidence did not suggest any intent or objective behind the kidnapping other than to facilitate the rapes. Section 654, accordingly, barred execution of sentence on the kidnapping count. (Latimer, at pp. 1216-1217.)
Appellant's case is distinguishable from Latimer because there is evidence on the record that appellant committed the assaults involving the jumper cables and the two-by-four with intent other than to facilitate the kidnapping. Here, the kidnapping was complete once appellant carried Priscilla any distance (§ 207, subd. (a)); any assaults subsequent to this were clearly not necessary to facilitate the initial kidnapping. Appellant does not seem to dispute that. Rather, appellant suggests the assaults occurred once Priscilla tried to escape and that he used the assaults solely to get her back into the vehicle to continue the kidnapping. This is not supported by the record.
The assault with the jumper cables occurred after appellant stopped the vehicle and asked Priscilla to exit. Priscilla's testimony suggests this happened successively, supporting the inference appellant put the kidnapping "on hold" to commit the assaults. Since appellant asked Priscilla to get out of the car, his claim that he assaulted Priscilla in order to keep her from escaping does not make sense.
The circumstances under which the assault with the two-by-four are less clear from the trial transcript. Appellant, however, cites the probation report that states Priscilla told law enforcement that appellant hit her with the two-by-four after she woke up by the trees. The report states: "After the assault, the victim got back into the vehicle and they continued westbound until the traffic stop that occurred on Highway 58." At trial, Priscilla denied she was hit with a two-by-four. However, she admitted she had made statements to officer Martinez about being hit by a two-by-four piece of wood. Martinez later testified that Priscilla had indicated the swollen and tender-to-the-touch area behind her left ear was caused by appellant hitting her with a two-by-four.
The evidence adduced at trial does not support the inference that appellant used the assault with the two-by-four in order to kidnap Priscilla. Further, appellant was a chronic abuser of Priscilla and had committed prior acts of violence on her, all of which were done with some intent other than to kidnap her. Based on this history and the facts surrounding the assaults in the context of the kidnapping, the trial court made a reasonable inference based on the entire record that appellant had an intent to assault Priscilla separate from facilitating the kidnapping.
Moreover, the purpose of section 654 is " 'to insure that a defendant's punishment will be commensurate with his culpability.' " (People v. Trotter (1992) 7 Cal.App.4th 363, 367.) Appellant heightened the risk that Priscilla would experience serious injury with each separate use of a weapon. This notion also justifies the imposition of sentences on the assault counts. (See, e.g., id. at p. 368 [finding § 654 did not apply to two counts of assault for two gunshots which occurred within one minute of one another; "Defendant's conduct became more egregious with each successive [gun]shot. Each shot posed a separate and distinct risk to [the victims]. To find section 654 applicable to these facts would violate the very purpose for the statute's existence."].)
Appellant also argues that the trial court's previous finding that the Kern County Superior Court was the proper venue for the case because the acts comprised a "continuous course of conduct" barred execution of sentences on the assaults. We reject this argument.
We do not find the trial court was bound at sentencing by this statement made before hearing the evidence at trial, nor does appellant cite any legal authority to support this proposition. "If . . . the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct." (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268, italics added.) Though the course of conduct may be described as "continuous," in that the assaults were committed while the kidnapping was in action, the proper test, as discussed, is whether substantial evidence supports that the course of conduct is divisible by the defendant's intent. We note that appellant raises no issue as to venue and makes no claim that the court's finding was in error; as such, our opinion is limited to the section 654 issue raised and not any issues with regard to venue.
Finally, appellant contends the court's failure to stay the assault sentences violated his Fourteenth Amendment due process guarantee of freedom from excessive punishment. His claim is based on the contention that his sentence was not authorized by state statute. Because we find no violation of section 654, we necessarily find no constitutional violation.
DISPOSITION
The judgment is affirmed.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.