Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF015040. Michael S. Hider, Judge. (Retired Judge of the Merced S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Nancy L. Tetreault, 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, Assistant Attorney General, Peter Quon, Jr., and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Lauro Barrazo Guerrero pled guilty to assault with a semi-automatic firearm (Pen. Code, § 245, subd. (b)—count 1), discharge of firearm in a grossly negligent manner (§ 246.3—count 2), two separate counts of making criminal threats (§ 422—counts 3 & 4), and battery on a spouse (§ 243, subd. (e)(1)—count 5). Defendant also admitted enhancement allegations for personal infliction of great bodily injury on count 1 (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)) and a prior felony conviction on count 2 (§§ 667, 1192.7, subd. (c)(8)). Defendant was sentenced to the low term of three years on count 1, with a consecutive term of three years for the great bodily injury enhancement under section 12022.7, and no additional time for the section 1192.7 enhancement. Low terms were set concurrently for counts 2 through 4, and a concurrent jail term of 120 days for count 5. No additional time was imposed for enhancements on count 2. This resulted in a total sentence of six years.
Unless otherwise noted, further statutory references will be to the Penal Code.
Defendant contends that section 654’s prohibition on multiple punishment for the same act precluded separate concurrent sentences for the assault with a semi-automatic firearm count, the negligent discharge count, and one of the criminal threat counts. Defendant also contends that the trial court abused its discretion by not granting probation. We agree that section 654 applies to counts 1 and 2; however, we disagree as to its application to count 3 and that the trial court abused its discretion by not granting probation.
BACKGROUND
Defendant—convinced his wife was having an affair with the victim—threatened and hit his wife (count 3) so that she would drive him to the victim’s place of business. Once they arrived at the business, defendant had his wife call the victim and ask him to come out to the vehicle. As the victim approached the vehicle, defendant hopped out of the vehicle while wielding a handgun and told the victim he was going to kill him. Defendant hit the victim over the head with the butt of the pistol (count 1), the pistol discharged (count 2), and a struggle ensued. The probation report describes the events as follows: “The victim began to back up as the defendant rushed toward him and hit him over the head with the butt of the gun. The gun went off, firing one round as it impacted the victim’s head and he began to stumble backward.” The trial court adopted this description in its summary during sentencing stating, “[defendant] did hit [the victim] over the head. We believe that’s when the gun was discharged.” The victim’s injuries were alleged to be a personal infliction of great bodily injury enhancement as to count 1.
While out on bail pending prosecution for charges related to the above incidents, defendant got drunk, hit his wife (count 5), and threatened to harm their children (count 4).
Defendant pled guilty to all counts and admitted all of the enhancement allegations in exchange for a maximum sentence of nine years. Defendant’s sentencing statement sought probation and included 21 letters from friends, family, and colleagues of defendant. The prosecution sought the full nine years. The trial court tentatively indicated it was “satisfied with [the] indicated sentence of nine years.”
At the sentencing hearing, the court stated it had “spent a considerable amount of time, much more than [it] usually [does], in determining what [it] deems is appropriate in a case such as this.” The trial court received testimony from friends, family, and colleagues of the defendant. The trial court summarized and restated the arguments it had gleaned from both parties’ sentencing memorandums. The trial court discussed sentencing with counsel at length in chambers and permitted counsel to comment on the court’s summary of positions and the court’s tentative decision. The trial court further stated it had “agonized over this case” and that the testimony in support of the defendant had saved defendant three years on his sentence.
The trial court set the firearm assault count as the principal count, imposed the low term of three years, and imposed a consecutive enhancement term of three years for the personal infliction of great bodily harm during the assault. The trial court imposed no additional time for other potential enhancements, and imposed concurrent low terms for the remaining three felony charges, including the negligent discharge of a firearm, and criminal threat charge, which occurred as part of the events relating to the assault with a firearm.
The trial court based its sentencing decision on its finding that the factors in mitigation outweighed the factors in aggravation, not in quantity but in the effect of each factor. In particular, the court thought that defendant did not plan on shooting the victim, that the discharge of the firearm was accidental, that there was either no prior conviction or at least a very insignificant record for driving with a suspended license, that there was insignificant professionalism or sophistication in the criminal activity, that defendant was remorseful, and that the alleged affair provided provocation.
Defendant’s notice of appeal did not request a certificate of probable cause. Following our Supreme Court’s holding in People v. Cuevas (2008) 44 Cal.4th 374, 384 (defendant’s challenge on § 654 grounds, to a sentence that was equal or less than what was plea bargained for, constitutes a challenge to the plea’s validity requiring a certificate of probable cause) defendant filed a petition for a writ of habeas corpus. We deemed the petition to be a motion to amend the notice of appeal and request for certificate of probable cause, and granted the motion. Defendant filed the amended notice with the trial court, and the trial court granted the request for a certificate of probable cause. Thus, defendant may challenge his sentencing and the applicability of section 654.
SECTION 654
Defendant contends that section 654’s prohibition on multiple punishment for the same act precluded separate, albeit concurrent, sentences for the assault with a semi-automatic firearm in count 1, the negligent discharge in count 2, and the criminal threat in count 3, all of which occurred on the same date.
1. Standard of Review
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)
When a court sentences a defendant to separate terms, it makes an implicit determination that the defendant held more than one criminal objective. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) “A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.” (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
2. Criminal Threats
Defendant contends that the consecutive sentence for the criminal threats, count 3, that occurred on the same day as the assault and negligent discharge should have been stayed. We disagree.
Even if “defendant entertained but a single principal objective during an indivisible course of conduct, he may nevertheless be punished for multiple convictions if during the course of that conduct he committed crimes of violence against different victims. [Citations.]” (People v. Miller (1977) 18 Cal.3d 873, 885.) In People v. Solis (2001) 90 Cal.App.4th 1002, 1023, the court found that making a criminal threat is an act of violence.
Defendant is confused as to the basis for the criminal threat charge for the events on the day that the assault occurred. This count was for the threats defendant made to his wife to coerce her assistance, not for the threatening statements made to the victim during the assault. Defendant’s threats to his wife occurred prior to the confrontation in which the assault and negligent discharge occurred, and were both separate in time as well as being directed at a different victim in a different physical setting.
Accordingly, section 654 is not applicable to count 3.
3. Negligent Discharge
Defendant also contends that the consecutive sentence for the negligent discharge, count 2, that occurred on the same day as the assault should have been stayed. We agree.
Defendant’s action subjecting him to both the negligent discharge and assault charges arise from a single act, and not from an indivisible course of conduct. (See, generally, People v. Latimer (1993) 5 Cal.4th 1203, 1208 [distinguishing between single act cases and indivisible course of conduct cases].) Section 654 prohibits punishment for two offenses arising from the same act, and thus if a single act is charged as the basis for the conviction a defendant can only be punished once.
The assault charge in count 1 included a great bodily injury enhancement allegation that defendant admitted. This injury occurred during the struggle in which the firearm discharge occurred, and thus, the assault count was pled by the People and admitted by defendant as being indivisible from the negligent discharge count. Indeed, the assault and discharge were consummated by defendant’s single act of hitting the victim over the head with the firearm resulting in the discharge. Because the injury enhancement was attached to count 1 we cannot accept the People’s narrative that the assault was consummated prior to the physical altercation.
Accordingly, section 654 does not apply as to count 3, but does apply to mandate staying the concurrent sentence imposed for count 2.
DENIAL OF PROBATION
Because of the nature of defendant’s offenses, section 1203, subdivision (e), prohibited the granting of probation, “[e]xcept in unusual cases where the interests of justice would best be served.” Defendant contends the trial court abused its discretion by failing to find his case “unusual” and grant him probation.
“The standard for reviewing a trial court’s finding that a case may or may not be unusual is abuse of discretion. [Citations.]” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) The decision to grant or deny probation also rests within the broad discretion of the trial court, and such discretionary decisions will not be disturbed on appeal except “on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.) Defendants bear a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) “ ‘In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez).)
Rule 4.413 of the California Rules of Court sets forth the factors to be considered to determine whether a case is unusual. If the case is unusual, a defendant’s suitability for probation would then be evaluated under the guidelines of California Rules of Court, rule 4.414. Defendant’s basis for his argument that the trial court abused its discretion in not finding his case to be unusual is that his “culpability was limited in this case by the fact his wife flaunted an extramarital affair after having promised [defendant] the affair had ended.” “[I]f the statutory limitations on probation are to have any substantial scope and effect, ‘unusual cases’ and ‘interests of justice’ must be narrowly construed and, as rule [4.413] provides, limited to those matters in which the crime is either atypical or the offender’s moral blameworthiness is reduced.” (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.) A trial court is not required to find a case unusual even if one or more of the criteria are met. Rather, the language of California Rules of Court, rule 4.413 is permissive in nature. (People v. Stuart (2007) 156 Cal.App.4th 165, 187.) California Rules of Court, rule 4.413(c)(2), provides facts limiting culpability that may indicate an unusual case, which are quoted by defendant and provide: “(A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; [¶] (B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation....” (Cal. Rules of Court, rule 4.413 (c)(2)(A) & (B).)
In not granting probation or otherwise addressing on the record whether the case was “unusual,” the trial court implicitly found that the case was not so unusual as to overcome the presumption against probation. (Cal. Rules of Court, rule 4.409 [“Relevant criteria... will be deemed to have been considered unless the record affirmatively reflects otherwise”].) Defendant contends that while the purported flaunting of an extramarital affair by his wife was not a defense, “it provoked him to such an extent that he was reacting from his emotions rather than his intellect.” Defendant then cites California Rules of Court, rule 4.413(c)(2)(B) as authority. However, defendant did not contend, nor did the evidence suggest, mental health care and treatment were appropriate. Thus, the trial court had no basis to determine California Rules of Court, rule 4.413(c)(2)(B) was applicable. Additionally, defendant pled guilty to crimes of violence that occurred on two separate occasions providing a reasonable basis for the trial court to exercise its discretion to determine the case was not unusual under California Rules of Court, rule 4.413(c)(2)(A). The trial court’s summary of the parties’ contentions during sentencing indicates the court considered all of the mitigating and aggravating factors before it and exercised its discretion in a considered manner. As a result, we have no doubt the trial court considered the particular facts of the charged offenses, the relative seriousness of the conduct involved, as well as any other relevant mitigating factors, in deciding to sentence defendant to no more than six years in state prison. While defendant may assign even greater weight to the mitigating factors than the trial court did, this is not sufficient to meet the heavy burden necessary to overcome the presumption that the trial court appropriately exercised its discretion to achieve legitimate sentencing objectives. (See Alvarez, supra, 14 Cal.4th at pp. 977-978.)
Because exceptions for unusual cases are to be narrowly construed, and because the record reflects the trial court weighed the analytical factors before it, we hold that the trial court did not abuse its discretion in not finding defendant’s case to be unusual. Because we find it was not an abuse of discretion to not find the case unusual, we do not address defendant’s contention that had the case been found unusual it would have been an abuse of discretion to not grant probation.
COURT SECURITY FEE
Although not raised by the parties, we note that the trial court did not impose any court security fees.
Section 1465.8, subdivision (a)(1), provides in relevant part that, “a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense....” (Italics added.)
This language is mandatory. “Section 1465.8’s legislative history supports the conclusion the Legislature intended to impose the court security fee to all convictions after its operative date.” (People v. Alford (2007) 42 Cal.4th 749, 754, italics added.) This includes convictions in which the sentence was stayed pursuant to Penal Code section 654. (People v. Crittle (2007) 154 Cal.App.4th 368, 371.) Where no fee is imposed at all the judgment should be modified on appeal to include the fee. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328.)
Accordingly, in addition to the relief on the issue addressed by the parties, the judgment should be modified to include the $20 court security fee for each of the five counts of which the defendant was convicted.
DISPOSITION
The judgment is modified to stay the sentence on count 2 and to impose five $20 court security fees pursuant to section 1465.8. The superior court clerk is directed to amend the sentencing minute order and the abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RICHLI, J., MILLER, J.