Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County, Super. Ct. No. RIF129540, Jeffrey Prevost, Judge.
Lise M. Breakey, 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, Gil Gonzalez, Supervising Deputy Attorney General, and Andrew Mestman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant of assault by means of force likely to produce great bodily injury (count 1—Pen. Code, § 245, subd. (a)(1)), assault with a deadly weapon (count 2—Pen. Code, §§ 667, 1192.7, sub d. (c)(31)), and possession of marijuana (Health & Saf. Code, § 11357, sub d. (b)). The trial court imposed the midterm of three years on count 1 and one-third the midterm on count 2. On appeal, defendant contends the court erred in imposing sentence on count 2 because it arose from the same indivisible course of conduct as count 1; therefore, he maintains Penal Code section 654 required the court to stay imposition of sentence on count 2. We conclude that counts 1 and 2 involved divisible conduct which involved separate intents; thus, the trial court properly imposed sentence on both counts. The judgment is, therefore, affirmed, but the matter is remanded to the trial court with instructions to exercise its discretion in imposing sentence on count 2 as either consecutive or concurrent to count 1.
All further statutory references are to the Penal Code unless otherwise indicated.
The court failed to indicate orally whether the sentence on count 2 was imposed consecutively or concurrently. As we shall discuss below, the matter must be remanded to the trial court to clarify its imposition of sentence on count 2.
I. FACTS AND PROCEDURAL HISTORY
On April 6, 2006, Jose Saldana arrived by bus at the station in downtown Riverside with the intention of catching another bus to San Bernardino. Immediately after exiting the bus, he became engaged in a hostile exchange of words with an individual at the station. The situation escalated into a physical altercation during which a number of the offending individual’s compatriots also threatened harm to Saldana. Saldana took off running up the street and was chased by a group of about 15 men. He ran into a business office and asked an employee there to call the police. The mob that chased him congregated outside the window of the office and made threatening gestures to Saldana. An employee called the police; however, after five to ten minutes elapsed, the police had yet to show.
Saldana realized that he lost his backpack. The mob appeared to have dispersed, so he left the office and retraced his steps, looking for his backpack. He found his bag near the bus station, however, the group that had chased him spotted him, yelled at him, and started running after him again. Saldana ran off into the middle of the street where he fell. While on the ground, individuals in the group, including defendant, punched him in the face between five to seven times. Saldana was on the ground for at least one minute before he was able to get up, run off, and jump into the back of a pickup truck stopped in traffic.
While Saldana was in the back of the truck, defendant swung a two- to three-foot long metal chain at him, barely missing him. The chain struck the truck, denting it and chipping the paint. The police arrived immediately thereafter and arrested defendant when Saldana identified him as the primary assailant. The officer found 3.8 grams of marijuana in defendant’s shoe.
II. DISCUSSION
A. The Trial Court Did Not Err in Imposing Sentence on Count 2
After completion of trial, defendant moved for dismissal of count 1, alleging no evidence had been produced showing that defendant was the individual who assaulted Saldana at the bus station. Indeed, Saldana explicitly testified that defendant was not the individual who initially assaulted him. Nonetheless, the People maintained that the count 1 charge of assault with intent to cause great bodily injury occurred while Saldana fell in the middle of the street and incurred repeated blows from defendant and others. The People further alleged that count 2, assault with a deadly weapon, concerned the incident in the pickup truck when defendant swung the metal chain at Saldana. The court denied defendant’s motion, but agreed to issue an instruction to the jury that the initial incident at the bus station could not sustain a guilty verdict for either count. The court imposed sentence on both counts 1 and 2. Defendant contends the court was required to stay imposition of sentence on count 2 because both offenses occurred during the same indivisible course of conduct.
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; see also People v. Centers (1999) 73 Cal.App.4th 84, 98; People v. Akins (1997) 56 Cal.App.4th 331, 338-339; People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) “The purpose of this statute 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.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
“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 of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) But “[i]f [a defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639; accord, People v. Latimer (1993) 5 Cal.4th 1203, 1216.)
“The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.” (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312.) The court’s findings may be either express or implied from the court’s ruling. (See People v. Blake (1998) 68 Cal.App.4th 509, 512.) In the absence of any reference to section 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective. (See, e.g., People v. Blake, supra, at p. 512; People v. Osband (1996) 13 Cal.4th 622, 730-731.) “‘We must “view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” [Citation.]’ [Citation.]” (People v. Hutchins, supra, at pp. 1312-1313.)
Here, while the court did not explicitly mention section 654, neither did it stay imposition of sentence on count 2; therefore, we must view the court’s imposition of sentence on count 2 as an implicit determination that the conduct for which the jury convicted defendant in counts 1 and 2 constituted separate, divisible acts. Moreover, the court explicitly determined that, from start to finish, the incident in its entirety included a total of three separate assaults: “This assault was unprovoked and continued for a period of time upon which any or all of the perpetrators could have left off the assault and left the victim in peace. But it continued. Really, three—at least three separate instances. [¶] I agree with [defense counsel] that the evidence is insufficient with respect to [defendant’s] participation in the initial assault. And, in fact, that did not go to the jury, if I recall correctly. But there was sufficient evidence with respect to the second assault and the assault in the truck.” (Italics added.) Thus, the court essentially determined that the later two incidents, the one in the street and the one in the truck, were separate, divisible acts for which imposition of sentence was proper. That determination is supported by substantial evidence.
Here, while there was some evidence that defendant had the metal chain with him for the duration of the events, hence substantiating a contention that he harbored a single intent or objective during the entire incident, that evidence conflicted with other testimony which indicates defendant discovered the chain in the back of Juanario Meneses’s truck. Meneses testified that he had a number of chains in the back of his truck, but that the chain used by defendant to attack Saldana was not his and that defendant must have brought it himself. He testified that he saw defendant chasing Saldana down the street while beating him with a chain prior to Saldana’s leap into his truck. However, Saldana never testified that he saw a chain wielded by any of his attackers for the duration of events up until the point that he jumped into the truck; thus, it seems unlikely that defendant had the chain during the entire chase. Likewise, Cherie Russell testified that the group chasing defendant were using their belts to whip him. Thus, Meneses could have conflated defendant’s use of his belt with the use of a chain. Rather, it appears more rational that defendant first encountered the chain in the back of Meneses’s vehicle, and used that opportunity to escalate the degree of violence he would use against Saldana. Indeed, Officer Michael Dillon, the arresting officer, testified that the chain wielded by defendant was fixed to the back of Meneses’s truck. The only chain found by Dillon in the vicinity was the chain in Meneses’s truck and it matched the description given by Saldana. No other chains were found. Exhibit 1 clearly shows a chain in the back of Meneses’s truck, which is permanently affixed thereto. Meneses’s and defendant’s contention that defendant had a chain for the entirety of the events is difficult to reconcile with the fact that no other chain was found; hence, insinuating that defendant’s chain simply disappeared after he used it. Moreover, Dillon detained defendant immediately after the assault with the chain. All the while, a chain matching the description given by Saldana lay in the back of the truck.
Thus, defendant’s initial objective or intent in assaulting Saldana in the street appears to have been to beat Saldana with his fists. Only upon the opportunity afforded by the unfortunate appearance of the chain in the truck did defendant change his intent or object to the infliction of potentially deadly force. Defendant’s intent in using the chain was an escalation of his original object, which was properly the subject of an additional charge and additional punishment. “It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.” (People v. Harrison (1989) 48 Cal.3d 321, 335.) Moreover, here, at least a minute separated the time of Saldana’s fall in the street and his assault by defendant with the chain. (See People v. Trotter (1992) 7 Cal.App.4th 363 [defendant properly convicted and punished for three separate gunshots at police where each shot was separated by periods of time during which reflection was possible and were not merely spontaneous or uncontrollable acts].) Furthermore, the location of the assault with the chain was physically removed from that of the beating in the street. Altogether, these factors suggest that the trial court had substantial evidence with which to determine that defendant’s conduct amounted to separate, divisible conduct for which multiple punishment was appropriate.
B. The Matter Must be Remanded to the Trial Court for an Express Declaration of Whether the Sentence Imposed on Count 2 is Concurrent or Consecutive to That Imposed on Count 1
According to the sentencing minute order, the abstract of judgment, and both parties’ briefs, the court sentenced defendant to the midterm of three years on count 1 and one-third the midterm of three years, one year, on count 2, to be served consecutively to count 1. Furthermore, the minute order and abstract of judgment reflect that the court imposed sentence on both prior prison terms, but sentenced defendant concurrently on one prior prison term and consecutively on another. However, the court’s oral pronouncement of sentence nowhere indicates that count 2 was to be imposed consecutively or that one of the prior prison terms was to be imposed concurrently. Indeed, the court did not indicate one way or the other whether sentencing on count 2 was to be concurrent or consecutive. Likewise, the court indicated it intended to impose, and did impose, sentence on both prior prison term enhancements. Moreover, imposition of a concurrent sentence on a prior prison term is an illegal sentence; sentence on a prior prison term must either be imposed consecutively or stayed. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.) If the trial court intended to impose a legal sentence on the prior prison terms and to impose sentence on count 2 consecutively, then defendant’s aggregate sentence should be six years, not five. Nonetheless, the court clearly indicated its intent to impose an aggregate sentence of five years: The court stated twice that defendant’s total term of incarceration would be five years.
By order dated October 25, 2007, we requested supplemental briefing from the parties addressing the issue of whether the sentencing ambiguity could be resolved by this court or requires remand to the trial court. Defendant maintains that, when viewed in context with the record as a whole, the trial court’s intent appears to have been the imposition of consecutive sentences on count 2 and one of the prison priors, but a concurrent sentence on the remaining prior; a sentence he acknowledges is illegal. He further contends the court’s indication of a five-year aggregate sentence results in a sentencing ambiguity which would be improper for this court to resolve.
“When sentencing error does not require additional evidence, further fact finding, or further exercise of discretion, the appellate court may modify the judgment appropriately and affirm it as modified.” (People v. Haskin (1992) 4 Cal.App.4th 1434, 1441.) The reverse proposition would, therefore, obviously follow; i.e., where sentencing error requires additional evidence, further fact finding, or further exercise of discretion, remand is required. The People disagree with defendant’s argument that there is any uncertainty regarding the trial court’s intent. It argues that the trial court intended to impose a six-year sentence, but simply erred in its calculation of the aggregate term. With this we cannot agree. The People cite People v. Edwards (1981) 117 Cal.App.3d 436, 451-452, footnote 4, for the contention that where it is clear the court intended to impose a consecutive sentence, remand is unnecessary. However, in that case, the court had before it a sentencing transcript from a consolidated case which, by all rights, should have been identical to the missing hearing from its case, and in which the trial court explicitly imposed consecutive sentences. (Ibid.) Here, the court gave absolutely no indication whether it was imposing sentence on count 2 consecutive or concurrent to count 1. Moreover, the Edwards court later noted that a trial court’s indicated aggregate sentence is properly considered when determining whether the court has imposed sentence on a particular allegation. (Id. at p. 452.) Here, the trial court twice indicated it was sentencing defendant to an aggregate term of five years’ imprisonment, not six. Thus, we believe the court’s sentencing scheme is vague and requires remand. On remand, the trial court may impose a consecutive sentence on count 2 and impose sentence on both prior prison terms for an aggregate term of six years’ imprisonment. In the alternative, the court may impose a concurrent sentence on count 2 and impose sentence on both prior prison terms for an aggregate term of five years’ incarceration. Nonetheless, any apparent error or miscalculation in the determination of defendant’s sentence does not affect defendant’s contention on appeal that imposition of sentence on count 2 should have been stayed pursuant to section 654. (People v. Cruz (1995) 38 Cal.App.4th 427, 434 [imposition of concurrent sentence is precluded where the sentence on that count is prohibited by section 654].)
III. DISPOSITION
The matter is remanded to the trial court for resentencing. On remand, the trial court may impose a consecutive sentence on count 2 and impose sentence on both prior prison terms for an aggregate term of six years’ imprisonment. In the alternative, the court may impose a concurrent sentence on count 2 and impose sentence on both prior prison terms for an aggregate term of five years. The trial court is directed to deliver a certified copy of the corrected minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Ramirez, P.J., McKinster, J.