Opinion
2d Crim. No. B226647
09-07-2011
THE PEOPLE, Plaintiff and Respondent, v. RUBEN CAMPOS HERRERA, JR., Defendant and Appellant.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Dana M. Ali, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1328449)
(Santa Barbara County)
Ruben Campos Herrera, Jr., appeals the judgment entered after a jury convicted him of assault with a deadly weapon upon a custodial officer (Pen. Code,§ 245.3), and custodial manufacture of a weapon (§ 4502, subd. (b)). In a bifurcated proceeding, the trial court found true allegations that appellant had suffered three prior serious felony convictions (§ 667, subd. (a)(1)) and four prior strike convictions (§§ 667, subds. (d)(1), (e)(2), 1170.12, subds. (b)(1), (c)(2)), and had served two prior prison terms (§ 667.5, subd. (b)). Appellant was sentenced to a total term of 25 years to life plus 15 years in state prison, consisting of 25 years to life on the assault count plus a five-year enhancement for each of his three prior serious felony convictions. The court also imposed a concurrent term of 25 years to life on the charge of manufacturing a weapon (count 2), and ordered the one-year sentences on the prior prison term allegations stayed under section 654. Appellant contends the court erred in (1) imposing more than one prior serious felony enhancement; (2) sentencing him to a concurrent term on count 2; and (3) staying, rather than striking, the prior prison term enhancements. We shall strike two of the five-year prior serious felony enhancements and the two prior prison term enhancements. Otherwise, we affirm.
All further undesignated statutory references are to the Penal Code.
STATEMENT OF FACTS
On November 17, 2009, Santa Barbara County Sheriff's Deputy Alan Reer was on duty as a correctional officer at the main jail. Appellant was housed by himself in an isolation cell adjacent to a cell occupied by Gerardo Ramos. As Deputy Reer was making his rounds, he saw appellant crouched down next to the toilet in his cell. When the deputy arrived at Ramos's cell, Ramos said, "[Y]ou need to get [appellant] out of there . . . ."
Deputy Reer turned back toward appellant's cell and noticed that appellant was now standing by the bars staring at him. The deputy stood in front of appellant's cell and asked if he needed anything. Appellant did not respond and continued staring. As Deputy Reer turned to leave, appellant reached through the bars of his cell and attempted to stab the deputy with a shank he had manufactured from one of the metal temple arms from a pair of eyeglasses. Appellant tried to stab Deputy Reer three or four times on the left side of his head and neck. After the first attempt, the deputy backed away from appellant's cell. While Deputy Reer was radioing for assistance, he saw appellant attempt to hide the shank behind his right hand. The deputy ordered appellant to drop the weapon several times, but appellant did not comply. Instead, he dropped the shank in the toilet and flushed twice. Appellant then returned to the bars of his cell and stared at Deputy Reer until he was handcuffed and removed from his cell.
The shank was subsequently retrieved from the toilet in appellant's cell. Scratch marks with a residue consistent with plastic were found on the floor next to the toilet. Deputy Jason Vasquez, who investigated the incident, testified that the shank was as sharp as a nail and could have been used as a stabbing instrument. Deputy Vasquez also believed that appellant had sharpened the weapon on the floor next to the toilet, as evidenced by the scratch marks.
Appellant was interviewed later that day. After appellant had waived his Miranda rights, he was asked to describe what had happened. Appellant responded, "You tell me." The question was repeated, and appellant gave the same response.
(Miranda v. Arizona (1966) 384 U.S. 436.)
DISCUSSION
I.
Prior Serious Felony Enhancements (§ 667, subd. (a)(1))
Appellant contends that two of the three five-year enhancements imposed for his prior serious felony convictions must be stricken because the prior convictions were not "brought and tried separately" as provided under section 667, subdivision (a)(1). The People concede the error.
Section 667 provides in pertinent part that "any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively." (Id. at subd. (a)(1).) "[T]he requirement in section 667 that the predicate charges must have been 'brought and tried separately' demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt." (In re Harris (1989) 49 Cal.3d 131, 136.) Accordingly, multiple five-year enhancements cannot be based on charges brought and tried in the same proceeding. (People v. Wiley (1995) 9 Cal.4th 580, 585.)
The record reflects that all three of appellant's prior serious felony convictions—two counts of first degree burglary (§ 459) and one count of elder abuse (§ 368, subd. (b)(1))—were brought and tried in a single proceeding. The People concede that only one five-year enhancement was warranted. Two of three five-year enhancements imposed under subdivision (a)(1) of section 667 will accordingly be stricken.
II.
Concurrent Term on Count 2 (§ 654)
Appellant asserts that the court violated section 654's ban on multiple punishment by imposing a concurrent term for custodial manufacture of a weapon as charged in count 2. He contends the sentence should have been stayed as to that count because the evidence established that the weapon was manufactured for the sole purpose of committing the assault that took place immediately thereafter. We conclude otherwise.
In arguing that section 654 applies, appellant states that "[t]he probation officer analyzed the facts and recommended that punishment for the second offense be stayed. At the sentencing hearing, counsel for appellant requested the court follow the recommendation of the probation officer, that punishment for Count 2 must be stayed pursuant to Penal Code section 654." The record belies both assertions. The probation officer did not recommend that the sentence be stayed under section 654, nor did counsel ask the court to stay the sentence. The probation officer recommended a concurrent sentence, and defense counsel urged the court to adopt that recommendation. As appellant correctly notes, trial counsel's failure to argue for the application of section 654 does not render the issue forfeited on appeal. (People v. Hester (2000) 22 Cal.4th 290, 295.)
Section 654, subdivision (a) provides in relevant part that "[a]n 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 applies not only to a single act, but also to an indivisible course of conduct committed pursuant to the same criminal intent or objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209.) "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Perry (2007) 154 Cal.App.4th 1521, 1525.) The purpose of the statute "'is to insure that a defendant's punishment will be commensurate with his culpability.' [Citation.]" (Latimer, supra, at p. 1211.)
A trial court's imposition of concurrent sentences is deemed to reflect an implied finding that each crime had a separate intent or objective, or that the course of conduct was divisible in time. (People v. Tarris (2009) 180 Cal.App.4th 612, 626-627; People v. Osband (1996) 13 Cal.4th 622, 730-731.) Both are factual determinations that must be upheld on appeal if supported by any substantial evidence. (People v. Andra (2007) 156 Cal.App.4th 638, 640.)
Substantial evidence supports the court's decision to sentence appellant for both manufacturing a weapon while in custody and using that weapon to assault Deputy Reer. In arguing to the contrary, appellant asserts that "the only reasonable inference . . . from the trial testimony was that appellant finished manufacturing the shank just before he assaulted the custodial officer" because "[a]ppellant was the only occupant of his cell and he was seen crouching down next to the toilet where scratch marks on the floor were later discovered." We reject appellant's premise. The court could reasonably infer that appellant would have been unable to remove a metal arm from a pair of eyeglasses and render it as sharp as a nail during the brief time that Deputy Reer saw him crouching down near the toilet. The conclusion that appellant had manufactured the shank earlier is further supported by the lack of any evidence that Deputy Reer had heard the sound of metal scratching on the floor.
Under the circumstances, this case is similar to those involving defendants convicted of both possessing a firearm and subsequently using it to commit an assault. The crime of possession "is complete once the intent to possess is perfected by possession. What the [defendant] does with the weapon later is another separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon." (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1414.) Where there is evidence from which it can be inferred that the defendant's possession of a firearm is antecedent to the assault, separate punishment for the possession and the assault is not prohibited under section 654. (Id. at p. 1408.)
A defendant is guilty of violating section 4502, subdivision (b) when he manufactures or attempts to manufacture a weapon while confined in a penal institution. Appellant's intent to commit this crime was perfected when he first undertook to create the shank. His subsequent use of that weapon to assault Deputy Reer was thus "another separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to [manufacture] the proscribed weapon." (People v. Ratcliff, supra, 223 Cal.App.3d at p. 1414.) An inmate who manufactures a weapon and uses it to assault a custodial officer is also deserving of more punishment than an inmate who assaults an officer with a weapon he did not fashion. Imposing sentence on both counts is therefore consistent with section 654's purpose of insuring that a defendant's punishment is commensurate with his culpability. (People v. Latimer, supra, 5 Cal.4th at p. 1211.) In the same vein, prohibiting separate punishment would be contrary to the statute's purpose. (People v. Monarrez (1998) 66 Cal.App.4th 710, 715 ["It is just as undesirable to apply [section 654] to lighten a just punishment as it is to ignore the statute and impose an oppressive sentence"]; People v. Jones (2002) 103 Cal.App.4th 1139, 1147.) Appellant's section 654 claim accordingly fails.
In his reply brief, appellant cites People v. Cruz (1978) 83 Cal.App.3d 308, and People v. Kane (1985) 165 Cal.App.3d 480, for the proposition that section 654 bars multiple punishment for a defendant convicted of both possessing a firearm and using that firearm to commit an assault. We agree with the subsequent decisions recognizing that these cases "simply failed to address the issue of prior or subsequent possession of the weapon or . . . reached the wrong result on the facts." (Ratcliff, supra, 223 Cal.App.3d at p. 1412; Jones, supra, 103 Cal.App.4th at pp. 1145-1147 [quoting same].) Appellant's citations to People v. Bradford (1976) 17 Cal.3d 8, and People v. Venegas (1970) 10 Cal.App.3d 814, are also unavailing. Those cases merely "distill the principle that if the evidence demonstrates at most that fortuitous circumstances put the firearm in the defendant's hand only at the instant of committing another offense, section 654 will bar a separate punishment for the possession of the weapon by an ex-felon." (Ratcliff, at p. 1412; Jones, at pp. 1148-1149.) That is not the situation here.
III.
Prior Prison Term Enhancements (§ 667.5, subd. (b))
Appellant contends the court erred in staying the two prior prison term enhancements imposed pursuant to section 667.5, subdivision (b). Appellant is correct. "Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken. [Citations.]" (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Jones (1992) 8 Cal.App.4th 756, 758.) "The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. [Citations.]" (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)
The People concede the error, but ask us to remand the matter so that the court can determine whether to impose or strike the enhancements. Appellant contends that remand is unnecessary because the court's stated reasons for staying the enhancements unequivocally demonstrate that it would strike the enhancements instead of imposing them. We agree with appellant. In the interests of judicial economy, we shall therefore order the enhancements stricken.
The court ordered the two prison priors "stayed as a result of the defendant's mental situation and an overview of the entire sentence that he will be receiving . . . ." Although the court contemplated a sentence that included three five-year prior serious felony enhancements, two of which are now being stricken, the court also stated that it would have either stayed or stricken "at least two" of those enhancements but for its belief that it lacked the authority to do so.
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DISPOSITION
The judgment is modified to strike (1) two of the five-year prior serious felony enhancements imposed under section 667, subdivision (a)(1); and the two one-year prior prison term enhancements under section 667.5, subdivision (b). The trial court shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, A.P.J.
COFFEE, J.
Edward H. Bullard, Judge
Superior Court County of Santa Barbara
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.