Opinion
C084497
08-09-2018
THE PEOPLE, Plaintiff and Respondent, v. HUMBERTO MARIO MENDOZA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16F4277)
On two occasions, defendant Humberto Mario Mendoza entered the home of a coworker and assaulted her. Based on the first incident, the jury found him guilty of misdemeanor assault (Pen. Code, § 240) and acquitted him of numerous charges. Based on the second incident, the jury found him guilty of first degree burglary (§ 459), criminal threats (§ 422), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), and false imprisonment by violence (§§ 236 & 237, subd. (a)), and found true enhancements for personal use of a firearm (§ 12022.5, subd. (a)) as to the burglary, false imprisonment, and criminal threats counts.
Undesignated statutory references are to the Penal Code.
The trial court sentenced defendant to a 10-year state prison term. The sentence consisted of an upper term of three years for criminal threats with a consecutive four years for the firearm enhancement, a consecutive year for the felony assault, a consecutive eight months for the false imprisonment with a stayed 10-year term for the firearm enhancement, a consecutive 16 months for the burglary with a stayed 10 years for the firearm enhancement, and a concurrent 180-day jail term for the misdemeanor. The court subsequently recalled the sentence and imposed consecutive 16-month terms for the two previously stayed firearm enhancements and modified the felony assault term to a concurrent three years, for a total term of 11 years eight months in prison.
On appeal, defendant contends the resentencing violated section 1170, subdivision (d) by imposing a prison term longer than the term originally imposed, and his sentences on the assault, burglary, and false imprisonment counts should have been stayed pursuant to section 654. We agree that the trial court erred in failing to apply section 654 and accordingly we shall remand for resentencing. As we explain, on remand the trial court must impose a sentence not greater than originally imposed.
BACKGROUND
Facts
A.W. and defendant worked together at a restaurant. In April 2016, A.W.'s fiancé died and she was afraid to stay home by herself. A.W. stayed with a female coworker and friend for about two weeks, and then stayed with another friend for a few days before returning home. After A.W. returned home, defendant agreed to stay with A.W. during the night; he slept on the couch. During the time defendant stayed with A.W., he taught her boxing to protect herself (bruising her in the process), and brought a gun for protection. Once defendant intervened when a stranger entered her house and chased the man away.
Defendant began to develop feelings for A.W. He told her he wanted her "to be his queen." A.W. was still getting over the death of her fiancé and did not have feelings for defendant. She was not in a good frame of mind during this period and thought of killing herself. On one occasion, defendant had her put a gun in her mouth and told her to pull the trigger. She did, but the gun was empty.
Defendant pushed for a relationship and A.W. told him to leave. After he left, defendant would show up at A.W.'s home and act erratically, rambling about how she would be his queen. He continued to come over although she repeatedly told him she did not want him there.
In early July 2016, defendant showed up uninvited. When A.W. told him to leave, he attacked and choked her. After he left, A.W. called a friend, whose son-in-law in turn called the police. A.W. was scared and did not give a statement to the police.
Three days later, after A.W. repeatedly rebuffed defendant at the restaurant, he entered A.W.'s house through the unlocked back door. She asked him to leave but he pulled a gun from the pocket of a suitcase and pointed it at her. He rambled about her being his queen, disparaged her deceased fiancé, and spoke about her friend, whom he believed had called the police. To prove the gun was loaded, he cocked it and bullets fell out. He said he would kill her, but she did not believe him. She wanted to call her friend for help, but defendant took her phone and threw it.
Defendant was at A.W.'s house for four hours, during which time he did "a lot." He choked her until she felt she would black out; he threw her on the ground and slapped her. At one point, while they were in the bathroom, defendant put a gun in A.W.'s mouth and threatened to kill her. She believed then that he would. Finally, he took her into the bedroom, said it was time to go to sleep, and began to undress. She asked if she could use the restroom. After refusing several times, defendant said yes. When A.W. went to the restroom, she saw her shoes and phone by the door. She grabbed them and ran out. She called her friend who called the police.
When the police arrived, A.W. was crying and hysterical. She had slight bruising and swelling on facial area and marks on both arms from the elbows to the shoulders. This time, she told the police what had happened.
When the police went to A.W.'s residence, they found defendant asleep or passed out in his boxer shorts. There were blue jeans on the floor with two nine-millimeter bullets in the pocket. In the kitchen was a men's T-shirt and under it a nine-millimeter gun.
The jury found defendant guilty as described ante.
Original Sentencing
The trial court first sentenced defendant on March 14, 2017. The People asked for a sentence of 12 years four months, while defendant sought probation. Initially, the court selected the upper term of six years on the burglary count as the principal term. When defendant challenged the firearm use enhancement on that count, the court decided to stay the enhancement. Apparently upon realizing that if the court imposed and stayed the firearm enhancement on the original principal term--the assault--there could be no unstayed full term enhancement, the prosecutor suggested "rearranging" the sentence and using the criminal threats count as the principal term.
As we explain in our Discussion, post, staying the enhancement but not the underlying offense was not a legally permissible option.
The defense argued the firearm enhancement on the burglary was unsupported because defendant did not display the gun, hit A.W. with it, or fire it as he entered the house. Here, the evidence was that defendant displayed the gun soon after he entered. To find use of a firearm in the commission of a burglary, a defendant need not use it "at the very moment he steps over the threshold," using it shortly thereafter is sufficient. (People v. Walls (1978) 85 Cal.App.3d 447, 453-454.) The trial court later concluded defendant had used a firearm in the commission of the burglary.
The trial court then designated the criminal threats count as the principal term and imposed a three-year upper term with a consecutive four-year middle term for the firearm enhancement. The court next imposed a consecutive 16-month term (one-third the middle term) on the burglary count. As to the firearm allegation on the burglary count, the court initially indicated it was going to dismiss or strike the allegation as to the burglary charge. After discussing the matter with defense counsel and the probation officer, the court decided it would impose and stay a 10-year upper term on the enhancement. Additionally, the court imposed a consecutive eight-month term (one-third the middle term) on the false imprisonment count and stayed a 10-year term for the firearm enhancement. The total state prison term was 10 years.
As we explain in the Discussion, post, neither of these options was a valid exercise of the court's discretion at the time of defendant's original sentencing.
The probation officer told the trial court he did not know whether the court could stay the enhancements. The court replied, "I believe I can. I'll be quite honest with you, I would have liked to have taken a closer look at that. If someone finds that I'm wrong on that, then let me know and we can always put it back on calendar to clarify [it]." The trial court asked the prosecutor to research the issue.
Sentencing on Recall
After the prosecutor's research revealed that section 654 did not authorize the stays on the firearm enhancements without stays of the underlying offenses, and there was no other apparent authorization, the trial court recalled the sentence three days later. The court stated it was formally recalling the sentence pursuant to section 1170, subdivision (d). Defendant argued section 654 applied to the individual counts and enhancements. The court noted defendant may have had a number of intentions when he entered the house and believed he formed different intents as time went on. The court found the false imprisonment was a separate act; at some point defendant formed the intent to prevent the victim from leaving and had a significant time to reflect on his actions. The court did find the strangulation, the assault with force likely to cause great bodily injury (count 5), was "part [and] parcel of both the criminal threats and the false imprisonment acts" so it imposed a concurrent term.
The court imposed a total state prison term of 11 years eight months. The sentence was composed of a three-year upper term for criminal threats with an additional four-year middle term for the firearm enhancement, a three-year concurrent term for the felony assault, a consecutive eight months for false imprisonment with a consecutive 16 months for the firearm enhancement, and a consecutive 16 months for residential burglary with a consecutive 16 months for the firearm enhancement.
Before imposing this sentence, the trial court stated, "in sentencing the Defendant, I should make a note that my original intention was to sentence the Defendant around 12 years. So my sentence today is consistent with that, slightly less, 11 years, 8 months, but more appropriate in my mind, the 10 years, that I felt I was forced to impose previously."
DISCUSSION
I
Section 654Both of defendant's contentions turn in part on whether the initial sentence was unauthorized. Both parties find fault with that sentence. The People contend that sentence was unauthorized because a sentence on an enhancement may not be stayed without staying the underlying count. (People v. Harvey (1991) 233 Cal.App.3d 1206, 1231; People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1121-1123.) As we discuss post, a change in the law now permits a sentencing court to strike or dismiss a firearm enhancement, but not stay it.
Defendant contends the sentences on burglary, false imprisonment, and assault (and the attendant firearm enhancements), must be stayed pursuant to section 654 because they were part of a single course of conduct with a single intent and objective. Because this contention applies to both the original and the recalled sentence, we address it first.
A. The Law
Section 654, subdivision (a), provides: "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." While the statute literally applies to multiple punishment arising from the same act or omission, it has been extended to cases where there are several offenses committed during an indivisible course of conduct. (People v. Hicks (1993) 6 Cal.4th 784, 789.)
"Whether a course of 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. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)
"Under section 654, 'a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]' [Citations.] This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. [Citation.]" (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
"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. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
B. Analysis
Defendant contends the sentences on burglary, false imprisonment, and assault with force likely to cause great bodily injury, and their attendant enhancements, must be stayed because the entire incident had a single intent and objective. He asserts the intent was to violently confront A.W. with the objective of frightening her in retribution for rejecting him. He contends there was a single, indivisible course of conduct--engaging in a physical domestic dispute.
The People concede a single error under section 654; they agree the assault charge should have been stayed. "When a defendant is convicted of burglary and the intended felony underlying the burglary, section 654 prohibits punishment for both crimes." (People v. Islas (2012) 210 Cal.App.4th 116, 130.)
The trial court instructed the jury that to prove defendant guilty of burglary, the People must prove he entered a building and intended to commit assault with a semiautomatic firearm, assault with force likely to cause great bodily injury, and/or criminal threats. The jury acquitted defendant of assault with a firearm, but found him guilty of assault with force likely to cause great bodily injury and criminal threats. Thus, the record supports a finding that defendant entered the house with two intents, to assault and to threaten. Relying on the rule of Islas, defendant contends that if he is sentenced on either assault or criminal threats, sentence on the burglary count must also be stayed. The People argue if sentence on either assault or criminal threats is stayed, the court may sentence on burglary. The People have the better argument.
"[M]ultiple punishment also may be imposed where the defendant commits two crimes in pursuit of two independent, even if simultaneous, objectives." (People v. Douglas (1995) 39 Cal.App.4th 1385, 1393.) In People v. Booth (1988) 201 Cal.App.3d 1499, defendant entered a house with the dual intent to rape and to steal. This court found it was proper to sentence defendant on both rape and burglary. (Id. at p. 1505; see also People v. Nelson (1989) 211 Cal.App.3d 634, 638-639, [where defendants entered house with "discrete objectives" of theft and assault, burglary and assault were separately punishable]; People v. Davis (1987) 191 Cal.App.3d 1365, 1369 [defendant sentenced for both kidnapping for robbery and rape where he had multiple criminal objectives in kidnapping victim].)
Here, the trial court could properly sentence defendant on both the burglary and either the assault or the criminal threats. Under section 654, the defendant "shall be punished under the provision that provides for the longest potential term of imprisonment." When determining the longest potential term for purposes of the part of 654, enhancements that might attach to any of the counts must be factored into the analysis. (People v. Kramer (2002) 29 Cal.4th 720, 722-725.) The sentence for burglary is two, four, or six years (§ 461), for criminal threats 16 months, two, or three years (§ 422), and two, three, or four years for assault with force likely to cause great bodily injury (§ 245, subd. (a)(4). All three changes included the firearm enhancement. Applying section 654, the trial court should have sentenced defendant on the burglary and the assault and imposed but stayed the sentence on the criminal threats.
Defendant further contends the false imprisonment sentence must be stayed because it was too intertwined with the other crimes to be divisible. In sentencing defendant on this count, the trial court found defendant had a separate intent to prevent A.W. from leaving and he had significant time to reflect on his actions. The evidence supports both findings. The false imprisonment lasted four hours and continued after the violence stopped. Even when defendant decided it was time to sleep, he prevented A.W. from using the bathroom until he finally relented and she escaped.
Due to the court's failure to apply section 654, we remand the case for resentencing. On remand, the trial court now has the discretion to strike or dismiss the section 12022.5 firearm enhancements. While briefing was pending in this case, Senate Bill No. 620 was passed, which amends the section 12022.5 and section 12022.53 enhancements so that the trial court may now strike such an enhancement in the interests of justice. (See §§ 12022.53, subd. (h), 12022.5, subd. (c).) The amendment to section 12022.5 applies retroactively to cases not final on appeal. (People v. Arredondo (2018) 21 Cal.App.5th 493, 507; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.)
II
Maximum Length of New Sentence
Defendant contends the trial court violated section 1170, subdivision (d) when it imposed a higher aggregate term when it resentenced him. That subdivision expressly provides that when a court recalls a sentence, it may "resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." (§ 1170, subd. (d)(1), italics added.) Although we remand for resentencing, this contention is still relevant as it will determine the maximum sentence defendant can receive on resentencing, 10 years or 11 years and eight months. The answer is 10 years.
The prohibition against imposing a sentence greater than the one originally imposed is found in state constitutional prohibition against double jeopardy. (See Cal. Const. art. I, § 15; People v. Torres (2008) 163 Cal.App.4th 1420, 1432; People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.) "When a defendant successfully appeals a criminal conviction, California's constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing." (People v. Hanson (2000) 23 Cal.4th 355, 357.) There is an exception to this rule where the trial court pronounces an unauthorized sentence. "Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement." (People v. Serrato (1973) 9 Cal.3d 753, 764, disapproved of on another point by People v. Fosselman (1983) 33 Cal.3d 572.)
The People rely on this exception to argue for a higher sentence, pointing out that an unauthorized sentence may be corrected at any time. (People v. Smith (2001) 24 Cal.4th 849, 854.) But the fact that some aspects of the original sentence were unauthorized, because the court failed to comply with section 654 and stayed firearm enhancements without staying the underlying crime, does not necessarily relieve resentencing from the constraints of double jeopardy. The determining fact is whether the original aggregate sentence was inherently unauthorized, such as by failing to include a mandatory component, or whether it was only calculated in an unauthorized manner.
In People v. Torres, supra, 163 Cal.App.4th 1420, the appellate court addressed the issue of "whether the trial court erred under Penal Code section 1170, subdivision (d) and the double jeopardy clause in sentencing defendant on recall to a term greater than his initial sentence under the present circumstances: his original sentence fell within the legal range of sentence, and correcting the unauthorized portion of his sentence did not mandate a sentence longer than that originally imposed." (Id. at p. 1422.) The court found that in the cases addressing an unauthorized sentence on resentencing "the defendant either received a sentence equal or lesser than his original sentence, or received a greater sentence only when the court's sentence demonstrated legally unauthorized leniency that resulted in an aggregate sentence that fell below that authorized by law." (Id. at p. 1432.) Since the aggregate term imposed by the trial court in Torres was itself authorized, but imposed in an unauthorized manner, the trial court could not impose a greater aggregate term than the original sentence when it corrected the unauthorized portion thereof. (Id. at p. 1433.)
Mustafaa is similar. The trial court in Mustafaa imposed consecutive terms for two gun enhancements while imposing concurrent terms for the underlying robbery offenses, which the appellate court found to be an error resulting in an unauthorized sentence. (People v. Mustafaa, supra, 22 Cal.App.4th at p. 1311.) It remanded for resentencing subject to an important caveat. "In Mustafaa's case the rule against double jeopardy applies because the court imposed a legal aggregate sentence, only fashioning it in an unauthorized manner. The court's error in separating the convictions from their attendant enhancements, though unauthorized by law, does not make the total sentence illegal. On remand, the court may not impose a total sentence more severe than the sentence originally imposed." (Id. at pp. 1311-1312.)
In People v. Vizcarra (2015) 236 Cal.App.4th 422, the appellate court upheld increasing defendant's sentence on remand because the original sentence failed to include a mandatory, consecutive enhancement and failed to either double one count under the three strikes law or strike the strike prior. The court distinguished both Torres and Mustafaa because in those cases the original sentence included an unauthorized component, while in Vizcarra the original sentence did not include mandatory elements. (Id. at p. 438.) The difference is between an authorized sentence that is fashioned in an unauthorized manner and a completely unauthorized sentence. (Ibid.)
The same applies here. Although the original sentence had unauthorized aspects, the aggregate term imposed on defendant was not less than that required by law. Because the trial court arrived at a legal term in an unauthorized manner, it may correct the unauthorized component but may not impose a total term greater than the authorized term of 10 years originally imposed.
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing consistent with this opinion. On remand, the trial court may not impose a term greater than the 10-year state prison term originally imposed.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Murray, J.