Opinion
A151965
09-25-2018
THE PEOPLE, Plaintiff and Respondent, v. RUBEN EDGARD-BUSTILLO FONSECA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51705441)
Ruben Edgard-Bustillo Fonseca (defendant) appeals from a judgment entered after a jury found him guilty of first degree robbery of a transit passenger (Pen. Code, § 211), making a criminal threat (§ 422, subd. (a)), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)). The trial court sentenced defendant to a total term of four years in state prison, consisting of the middle term of four years for robbery, the middle term of two years for making a criminal threat—which the court stayed under section 654—and a concurrent, upper term of four years for the assault. Defendant contends the court should have stayed his sentence on the assault count under section 654. We reject the contention and affirm the judgment.
All further statutory references are to the Penal Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
On June 14, 2017, a first amended information was filed charging defendant with: (1) first degree robbery of a transit passenger (§ 211, count one); (2) making a criminal threat (§ 422, subd. (a), count two); and (3) assault by means likely to produce great bodily injury (§ 245, subd. (a)(4), count three).
The information was based on an incident that occurred on October 20, 2016. At about 11:30 a.m. or noon that day, Nelson Valle was at the 12th Street BART station in Oakland heading home to San Pablo. He had been feeling sick and had just gone to Oakland Kaiser for a doctor's appointment. He got on the train and took a seat. The train car he entered was not crowded; there were "[m]aybe two" other people on it.
About two stops later, a man he had never seen before—defendant—got on the train and sat right next to him, which he thought was strange since the train car was empty. Defendant showed Valle an identification card. Valle asked defendant if he could sit in another seat since the train was empty. Defendant did not move. Valle therefore asked, "Could I move?" and tried to move, but defendant blocked him in. Defendant then pushed Valle on his shoulder and chest four times. At that point, Valle punched defendant in the face, and the two "got in an altercation for about seven or eight minutes." Valle was not advancing toward defendant during the altercation; rather, Valle was standing in one area and defendant "was coming towards [him]." Valle took a defensive position. Defendant hit Valle in the face, choked him, and bit him in the back of his neck, thumb, fingers, and ear. As defendant bit Valle's thumb, Valle thought defendant was going to bite the thumb off.
Eventually, defendant placed Valle in a leg lock and poured the contents of Valle's backpack—a notebook and some paperwork—onto the floor. Defendant then grabbed Valle's wallet from Valle's back pocket and took three $20 bills from the wallet.
As the altercation continued, defendant put his knee on Valle's neck and choked him. Defendant said, "You're going to die," and Valle felt like he was actually going to die, as he almost lost consciousness and saw "colors I've never seen before." He feared for his life and was defenseless and could not move because defendant, who "probably weighs 170, 180," had placed "[h]is whole weight" on him.
As Valle thought to himself, "I was going to die," he grabbed some keys and tried to stab defendant in an attempt "to get him off of me." Thereafter, defendant rushed off the train while mumbling something, and proceeded to go down the escalator. Valle remained in the train car, where he was met by police.
BART Police Officer Luis Vallejo testified that shortly after he was dispatched to the El Cerrito Plaza station, a fellow BART officer informed him that a suspect from a fight on a train was walking downstairs. Vallejo detained the man, who was identified as defendant. Defendant did not have any visible injuries and told Vallejo that he was "not at all" injured. Vallejo found a wallet on defendant's person during a patsearch. Defendant said the wallet was not his and that he had found it on the ground, but Vallejo found defendant's identification card and three $20 bills inside the wallet.
BART Police Officer Gerard Washington testified that he saw Valle in the doorway of a train car. Valle appeared dazed and was staggering to keep his balance. His mouth and his right hand were bloodied, and his mouth was wide open as if he were trying to catch his breath. As Valle sat down, Washington saw two bloody bite wounds on the back of Valle's neck that "appeared to be significant." Valle also had a bite wound on his upper left cheek. Valle was in shock and upset as he told Washington what had happened on the train.
Washington brought Valle to the location where defendant was being detained. Valle positively identified defendant as the person who had attacked him.
Defendant testified that he sat next to Valle because Valle resembled a person who had just run off with defendant's keys. Defendant showed him an identification card and asked, "This looks like you, doesn't it?" Valle ignored defendant. Defendant told him he did not want any trouble, needed to get home to his daughter, and would give him a little money if Valle gave him back his keys. Defendant told Valle that he "wanted to see if he had my stuff in his backpack." Valle did not respond.
Valle then got up, and defendant also got up. Valle asked, "Is there a problem?" Defendant told Valle he really needed to see inside his bag to see if Valle had his keys. Valle handed his backpack to defendant but started punching defendant. In response, defendant head-butted Valle in the mouth and they began to wrestle. Defendant was able to gain control of Valle and held him with his legs. Valle bit defendant on the forearm, and in response, defendant bit Valle behind the neck.
Defendant began searching Valle's backpack, and tried to match the name on the identification card he had to the paperwork in the backpack to see if he was dealing with the right person. Defendant then felt a sharp pain in his leg and realized he had been stabbed with something. He wrestled Valle to the ground and was able to grab Valle's hand. Defendant put Valle in a leg lock, and Valle let go of the key. When defendant started searching through the backpack again, Valle stabbed defendant with a pencil. Defendant bit Valle in the hand until he let go of the pencil. Defendant did not make any threats to Valle. He denied taking money from Valle and said that the $60 the police found on him was money he "had collected from tips the previous couple days of work."
On cross-examination, defendant acknowledged he lied when BART police officers questioned him after the incident. He testified, "Pretty much everything I said to Mr. Vallejo I was trying to deny having anything to do with the incident I had just been in." He said his first instinct was to lie. He told Vallejo that he had just gotten on and off the train and did not even ride the train. He told Washington that he had witnessed someone fall down on a BART train car. Realizing that the officers would notice that he looked like he "had just been in a fight," defendant came up with a lie and said he "had rough sex the night before." After being placed in a BART police holding cell, he lied to a detective who questioned him about the incident. Portions of defendant's interviews were played for the jury.
A jury found defendant guilty as charged. The trial court sentenced defendant to a total term of four years in state prison, consisting of the middle term of four years for robbery, the middle term of two years for making a criminal threat—which the court stayed under section 654—and a concurrent, upper term of four years for the assault.
DISCUSSION
Defendant contends the trial court should have stayed his sentence on the assault count under section 654. We disagree.
Section 654, subdivision (a) provides 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." The purpose of this section is "to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense—the one carrying the highest punishment." (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
Section 654 may also apply where the defendant suffers multiple convictions as a result of a single course of conduct pursuant to a single intent or objective. Multiple punishment for more than one offense arising from the same act or from a series of acts constituting an indivisible course of conduct is prohibited. (People v. Lewis (2008) 43 Cal.4th 415, 519, disapproved on another ground in People v. Black (2014) 58 Cal.4th 912, 919-920.) If all the offenses were merely incidental to, or were the means of accomplishing or facilitating, one objective, the defendant may be found to have harbored a single intent and therefore may be punished only once. (People v. Palmore (2000) 79 Cal.App.4th 1290, 1297.)
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; People v. Brents (2012) 53 Cal.4th 599, 618 ["A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence"].)
Here, the prohibition against multiple punishment did not bar the sentence the trial court imposed because there was substantial evidence to support a finding that defendant harbored separate intents and objectives in committing the robbery and assault. The evidence showed with respect to the robbery that defendant attacked Valle, placed him in a leg lock, poured the contents of Valle's backpack onto the floor, grabbed Valle's wallet from his back pocket, and took $60 from him. Valle testified that he was able to look up from his restrained position and see defendant take the money out of his wallet. Defendant's intent in committing the robbery was to take Valle's property, and he accomplished this objective when he took the $60 from him.
Defendant nevertheless continued to attack Valle, committing a further assault on him with the separate intent of inflicting serious bodily injury. As Valle testified, at some point after taking the money, defendant placed his knee on Valle's neck and began to choke him. Defendant said, "You're going to die," and Valle felt like he was actually going to die, as he almost lost consciousness and saw "colors I've never seen before." He feared for his life and was defenseless and could not move because defendant had placed "[h]is whole weight" on him. Defendant's intent and objective in committing the assault was to inflict serious bodily injury.
Defendant argues that section 654 bars the multiple punishment in this case because the assault was the means to accomplish the robbery. The trial court addressed this argument, finding that defendant's act of pressing his knee and body weight against Valle's windpipe while threatening him was extreme and gratuitous conduct far beyond what was needed to accomplish the robbery. The court stated, "[Valle] saw the defendant take the money out of his wallet when he was in the leg lock. So after that, the beating continued. And so I'm not finding the 245 is 654 to the 211." We agree the second assault cannot be viewed as merely a means to commit or facilitate the robbery, or as incidental to the robbery. Because the robbery and assault offenses involved separate intents and objectives, the court properly imposed separate sentences on those counts.
DISPOSITION
The judgment is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
Siggins, P. J. /s/_________
Pollak, J.