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People v. Lucero

California Court of Appeals, Fourth District, Second Division
Sep 9, 2008
No. E044755 (Cal. Ct. App. Sep. 9, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. INF059043. Randall Donald White, Judge.

James R. Bostwick, Jr., 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, and Ronald A. Jakob and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

King, J.

A jury convicted defendant of two counts of elder abuse (counts I & II—Pen. Code, § 368, subd. (b)(1)) against his father and mother, respectively; two counts of assault (counts III & IV—§ 245, subd. (a)(1)) also against his father and mother, respectively; one count of assault (count V—§ 245, subd. (a)(1)) against his sister; and one count of misdemeanor battery upon a police officer (count VI—§ 243, subd. (b)). In a bifurcated proceeding thereafter, the trial court found true an allegation that defendant had suffered a prior strike conviction. (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1).) The court imposed an aggregate prison sentence of 10 years. On count I (elder abuse against his father), defendant was sentenced to the midterm of three years, doubled to six years. On count II (elder abuse against his mother), defendant was sentenced consecutively for an additional two years (one-third the midterm, doubled). Six-year sentences on both counts III and IV (assaults on his mother and father) were run concurrently. On count V (assault against his sister), defendant was sentenced to an additional consecutive term of two years. And a one-year sentence on count V was run concurrent. On appeal, defendant maintains the matter must be remanded for resentencing because the court was unaware of its discretion to impose concurrent, rather than consecutive, sentences on counts II (elder abuse on his mother) and V (battery on his sister). Contrary to defendant’s contention, we find that the court consciously exercised its discretion in imposing consecutive sentences on those counts.

All further statutory references are to the Penal Code unless otherwise indicated.

Box 4 on the abstract of judgment has been incorrectly left unchecked, thus neglecting to reflect that defendant’s sentence has been augmented due to the true finding on the prior strike allegation. We shall order the trial court to correct the abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation.

Defendant further argues that sentence on counts III and IV (assaults on his mother and father) must be stayed pursuant to the dictates of section 654. The People concede the issue. We agree and, therefore, direct the trial court to amend the minute order dated November 30, 2007, and the abstract of judgment to reflect that imposition of sentence on counts III and IV has been stayed. In all other respects, the judgment is affirmed.

I. FACTS AND PROCEDURAL BACKGROUND

Riverside County sheriff’s dispatch received a 911 call from defendant’s then 68-year-old mother, Bernice Lucero, on the morning of July 4, 2007. During that call, Bernice informed the operator that defendant “beat the shit out of [me], . . . he tossed me around, and I just had surgery and he tossed my husband and he hurt my husband badly!” She further stated that defendant “beat everybody in the family up[,]” that he tore her clothing off, that he bit her daughter’s breast, and that her husband needed to go to the hospital.

For ease of reference, and with no disrespect, defendant’s mother and father will be referred to by their first names

Sheriff’s Deputies Donald Olson, Tom Zornes, and Ubaldo Navarro were dispatched to the Lucero residence in reference to an alleged incidence of domestic violence. When Deputy Olson arrived, Bernice informed him that defendant had squeezed the triceps area of her arms with both his hands and hit her in the back of the head three times. Bernice sustained bruising to her arms. Defendant’s father, then 68-year-old Roger Lucero, was awakened by the noise caused by the altercation. Roger attempted to dispel the tension of the situation by speaking with defendant. However, defendant was nonresponsive to Roger’s endeavors. Roger accidentally knocked a piece of pizza out of defendant’s hands. Roger told Deputy Olson that defendant then threw a chair at him; at trial he testified defendant merely “picked it up and shoved it” at him.

Defendant punched Roger in the chest and head-butted him. Roger fell on the floor. While on the floor, defendant bit Roger’s forearm and fingers. As observed by Deputy Olson, Roger sustained “a large contusion or swelling on his forehead above his left eye. It’s about three inches in diameter. He had a cut on the lower lip. There was blood on his shirt. There was blood on his clothing, or on his face . . . .” Roger had bite marks on his forearm and fingers. Roger was treated for his injuries at the hospital.

Defendant’s sister, Robin Shephard, attempted to dislodge defendant from their father. Defendant bit through her shirt and bra into her breast. Shephard was also treated at the hospital for her injury.

Deputies located defendant in a “casita” on the property. The deputies handcuffed him. Deputy Zornes asked defendant who the people in the house were. Defendant replied that they were his mother, father, sister, and brother-in-law. Defendant stated that he had gotten into an argument with his family members the previous night and that it had carried over into that morning. He stated that he ripped off his mother’s clothing and bit her on the chest. Defendant then became emotionally charged, standing up and refusing to comply with directions. Deputy Zornes forced defendant to the ground with Deputy Navarro’s assistance. Defendant then kicked Deputy Navarro three times.

Deputies took defendant to the sheriff’s station where he was questioned. When asked if he bit his father and sister, defendant replied, “Fuck, yes, I bit them both, and I would do it again.” When asked if he hit his mother, he responded, “Fuck, yes. She got in my face. I hit her, and I would hit her again.” When asked if he was sorry for hitting his parents, defendant answered, “No, they got in my face, intruded on my space, and I would do it again. [¶] . . . No one gets in my face or intrudes in my space. [¶] . . . I’ll fuck up anyone that does.”

Prior to pronouncing sentence, the court read an extended passage from the probation officer’s report concerning defendant’s probation interview in which defendant essentially maintained that he was the victim and that should his parents intrude upon his privacy in the future, a similar episode would be likely to occur. When imposing sentence on count V, the court stated it would impose a consecutive term of two years “by operation of law.” It further explained, “By operation of law, the time is doubled pursuant to [section] 667[, subdivision] (e) of the Penal Code in each of the counts.” After pronouncing sentence, defense counsel asked the court “that the consecutive sentences be converted to concurrent based on [section] 654. It’s the same course of conduct.” The court denied defendant’s request, responding that, “I do not believe it is the same course of conduct.”

II. DISCUSSION

A. The Court Appropriately Exercised Its Discretion in Imposing Consecutive Sentences on Counts II and V

Defendant contends the court’s statement that imposition of sentence on count V was “by operation of law” and its subsequent assertion that the counts for which it had imposed consecutive sentences were not “the same course of conduct” reflect the court’s miscomprehension of its discretion to impose concurrent, rather than consecutive, sentences. In other words, defendant maintains the court, in sentencing defendant to consecutive terms, erroneously applied the standard used in determining whether to stay a sentence under section 654. We disagree.

“Consecutive sentencing is mandatory under the ‘Three Strikes’ law, to the exclusion of concurrent sentencing, when a perpetrator is convicted of multiple felonies that were ‘not committed on the same occasion’ and did ‘not aris[e] from the same set of operative facts.’ (Pen. Code, §§ 667, subd. (c)(6), 1170.12, subd. (a)(6).) [¶] By contrast, consecutive sentencing is permissive under the Three Strikes law, together with concurrent sentencing, when the perpetrator is convicted of multiple felonies that were ‘committed on the same occasion’ or ‘[arose] from the same set of operative facts.’ (Pen. Code, §§ 667, subd. (c)(6), 1170.12, subd. (a)(6).)” (People v. Lawrence (2000) 24 Cal.4th 219, 235 (conc. opn. of Mosk, J.), fn. omitted.) Under our facts, the court clearly had the discretion to sentence either consecutively or concurrently.

As pointed out by defendant, in People v. Deloza (1998) 18 Cal.4th 585, the California Supreme Court determined that an analysis of whether consecutive sentences for multiple felony convictions is mandatory is not coextensive with a section 654 analysis. (People v. Deloza, supra, at pp. 588, 595.) “Indeed, section 654 is irrelevant to the question of whether multiple current convictions are sentenced concurrently or consecutively. Rather, if a defendant commits two crimes, 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, whether concurrent or consecutive. [Citation.] Thus, the question of whether sentences should be concurrent or consecutive is separate from the question of whether section 654 prohibits multiple punishment.” (Id. at p. 594.) Therefore, when determining whether to impose consecutive or concurrent sentences on multiple count convictions under section 667, subdivisions (c)(6) and (7), sentencing courts should apply the independent legal tests provided for in that section and developed in cases such as People v. Deloza, supra, and People v. Lawrence, supra, 24 Cal.4th 219, rather than the “single act or omission, or indivisible course of conduct” test provided for in section 654. (People v. Deloza, supra at pp. 594-595.)

As we explain, the record demonstrates that the court sentenced defendant to consecutive terms based on proper legal and factual considerations as set forth in the California Rules of Court. First, defendant cites to the court’s statement that its imposition of sentence on count V was “by operation of law” in support of his determination that the court believed it was required to impose consecutive sentences. However, as noted by the People, the court made no such assertion when imposing a consecutive sentence on count II. Moreover, the court immediately clarified what it meant by the phrase “by operation of law”: “By operation of law, the time is doubled pursuant to [section] 667[, subdivision] (e) of the Penal Code in each of the counts.” Thus, the court was referring to the doubling of defendant’s sentence pursuant to the three strikes law, rather than the imposition of a consecutive sentence.

Second, defendant argues that the court’s determination that counts II and V were not “the same course of conduct” reflects that it applied a section 654 analysis, rather than the appropriate section 667, subdivision (c)(6) analysis. It is true that defense counsel requested that the court convert the consecutive sentences it had imposed on counts II and V to concurrent terms “based on [section] 654. It’s the same course of conduct.” The court denied that request, noting that, “I do not believe it is the same course of conduct.” As noted above, a section 654 analysis is not the appropriate test for determining whether to impose consecutive or concurrent terms when sentencing pursuant to section 667, subdivision (c)(6). However, rather than being indicative of a mistaken understanding of its discretion to impose concurrent terms, it appears, under the circumstances, that the court’s statement was merely an echoing of defense counsel’s erroneous reference to section 654. In particular, the court’s statements prior to imposing sentence indicate that it understood it had discretion to impose concurrent terms, it simply exercised that discretion against doing so.

Indeed, before imposing sentence, the court chose to read a rather lengthy excerpt from the probation officer’s report reflecting upon the egregiousness of defendant’s current offenses, his failure to take any responsibility for his actions, and his indication that a similar incident would likely occur again were he to be released. This litany of aggravating criteria meshes well with those factors a court may consider when electing whether to impose concurrent or consecutive sentences. (Cal. Rules of Court, rule 4.425(b)(1)-(3).) After having read these passages, the court concluded that “[t]here are many concerns in this case. Many, many, many concerns.” The court then launched into its pronouncement of sentence. Thus, far from indicating that the court believed it was required to impose consecutive sentences, the circumstances reflect the court was fully cognizant of its discretion to impose concurrent sentences, it simply chose to exercise that discretion in favor of consecutive sentences. Its concern with justifying, on the record, the reasons for its imposition of consecutive sentences underscores the court’s comprehension of its full sentencing discretion. Moreover, since the court imposed midterm sentences on all counts, its recitation of aggravating factors noted in the probation officer’s report would have been extraneous had it believed that consecutive sentences were mandatory.

B. Imposition of Sentence on Counts III and IV Must Be Stayed Pursuant to Section 654

Section 654 reads: ‘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. . . .’ Although section 654 speaks in terms of an ‘act or omission,’ it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time. [Citation.] The key inquiry is whether the objective and intent attending more than one crime committed during a continuous course of conduct was the same. [Citation.] ‘[I]f all of the offenses were merely incident 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. Meeks (2004) 123 Cal.App.4th 695, 703-704.)

A defendant’s intent and objective are factual matters for the trial court to determine. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) We must affirm the sentence if substantial evidence supports a trial court’s determination that a defendant entertained multiple objectives in the commission of crimes occurring during a single course of conduct. (Ibid.) Here, while there were passing references to section 654 during the sentencing hearing, as noted above, this was limited to the imposition of consecutive or concurrent sentencing on counts II and V. No reference or discussion of section 654’s applicability to the assault counts was made at sentencing. 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 (1998) 68 Cal.App.4th 509, 512; People v. Osband, supra, at pp. 730-731.) However, “[w]here section 654 precludes multiple punishment and the trial court erroneously sentences on all counts, the appellate court must stay the effect of the lesser offense(s) in order to comply with section 654 while permitting execution of the greater offense consistent with the intent of the sentencing court. Under such circumstances, the appellate court can logically presume that where the trial court sentences on all counts, the court meant to impose sentence at least on the most serious.” (People v. Bradley (1981) 115 Cal.App.3d 744, 753.)

Here, defendant contends there is no discernable separate intent or objective between the offenses underlying the elder abuse and assault convictions. Indeed, at trial, no effort was made to separately delineate the conduct alleged as elder abuse from the conduct alleged as assault. Rather, it appears from the record that the same attacks upon defendant’s mother and father were the bases for the convictions of both elder abuse and assault. Moreover, the People concede that imposition of sentence on counts III and IV must be stayed pursuant to section 654. Therefore, we shall direct the trial court to amend the minute order dated November 30, 2007, and the abstract of judgment to reflect that imposition of sentence on counts III and IV has been stayed.

III. DISPOSITION

The trial court is directed to amend the minute order dated November 30, 2007, and the abstract of judgment to reflect that imposition of sentence on counts III and IV has been stayed. The trial court is further directed to correct the abstract of judgment by checking box 4. 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: McKinster, Acting P.J., Miller, J.


Summaries of

People v. Lucero

California Court of Appeals, Fourth District, Second Division
Sep 9, 2008
No. E044755 (Cal. Ct. App. Sep. 9, 2008)
Case details for

People v. Lucero

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RONALD ANTHONY LUCERO, Defendant…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Sep 9, 2008

Citations

No. E044755 (Cal. Ct. App. Sep. 9, 2008)