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People v. Murillo

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Feb 16, 2012
No. D058142 (Cal. Ct. App. Feb. 16, 2012)

Opinion

D058142

02-16-2012

THE PEOPLE, Plaintiff and Respondent, v. RUDY J. MURILLO, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE222140)

APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Affirmed.

INTRODUCTION AND PROCEDURAL OVERVIEW

A jury convicted defendant Rudy J. Murillo of mayhem (Pen. Code, § 203), assault with caustic acid (§ 244, subd. (a)(1)), arson causing great bodily injury (§ 451, subd. (a)), battery with serious bodily injury (§ 243, subd. (a)) and corporal injury to a cohabitant (§ 273.5, subd. (a)) in connection with his assault on the victim, Sheri Vargas. The jury found true the special allegations, appended to all the charged offenses except the arson offense, that Murillo personally used a deadly weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury (GBI) within the meaning of section 12022.7, subdivision (e) (infliction of GBI under circumstances involving domestic violence) in committing the offenses. The court sentenced Murillo on the mayhem count to the upper eight-year term, plus a consecutive upper five-year term for the GBI enhancement), plus a consecutive one-year term for the deadly weapon enhancement, for a total term of 14 years.

All further statutory references are to the Penal Code.

The court imposed but stayed the sentences for the remaining counts under section 654.

On appeal, this court in an unpublished opinion affirmed the convictions and findings, but reversed Murillo's upper terms imposed for the mayhem conviction and the GBI enhancement under Blakely v. Washington (2004) 542 U.S. 296 . However, following People v. Black (2005) 35 Cal.4th 1238, this court vacated its opinion and affirmed the trial court's judgment in its entirety. Then, under Cunningham v. California (2007) 549 U.S. 270 , which in part overturned Black, the San Diego Superior Court ordered Murillo resentenced. The trial court resentenced Murillo to a 13-year prison term consisting of an eight-year term for the mayhem conviction, a four-year term for the GBI enhancement (§ 12022.7, subd. (e)), and a one-year term for the deadly weapon enhancement (§ 12022, subd. (b)(1)).

This court on February 17, 2011, granted Murillo's unopposed request for judicial notice of this court's prior opinion (D042605).

The court again stayed the sentences for the remaining counts under section 654.

Murillo again appealed, contending section 654 required the trial court to stay the one-year sentence for the deadly weapon enhancement.

In an opinion filed on December 15, 2011, a majority of this court disagreed, concluding the imposition of separate and consecutive sentences for the deadly weapon enhancement (§ 12022) and the GBI enhancement (§ 12022.7) was mandated by the provisions of section 1170.1. In so doing, the majority recognized that the issue of whether section 654 applies to enhancements and thereby precludes imposition of enhancements for both personal use of a firearm and personal infliction of GBI was currently before the Supreme Court in People v. Ahmed S191020 (E049932, 4th District, Div. 2 (Ahmed)) and People v. Robinson S193289 (B223191, 2nd District, Div. 5).

On December 22, 2011, the California Supreme Court decided Ahmed (53 Cal.4th 156). On December 28, 2011, this court on its own motion vacated its December 15, 2011 opinion, granted rehearing and requested the parties file simultaneous letter briefs addressing the "relevance, if any, of . . . section 654 . . . to the question of whether a court may impose multiple enhancements for a single crime; and, more specifically, whether the court properly imposed both enhancements in this case." (Ahmed, supra, 53 Cal.4th at p. 823.)

FACTUAL OVERVIEW

On the day of the assault, Murillo and Vargas consumed about 20 beers each. They began to argue and Vargas gathered her clothes to leave. Murillo grabbed the clothes from Vargas, walked outside, threw the clothes on the ground and sprayed lighter fluid on them. Vargas pushed Murillo and a shoving match ensued. As Vargas advanced on Murillo, he lit the sleeve of her sweater on fire. The fire spread quickly despite their joint efforts to extinguish the flames. Murillo shouted for his father, who brought water and eventually extinguished the flames.

Vargas suffered severe external burn injuries, and also suffered burn injuries to her lungs, trachea and vocal chords. Vargas died from her injuries after Murillo's trial and initial sentencing.

DISCUSSION

A. Ahmed

Briefly, in Ahmed the jury convicted defendant of a single crime—assault with a firearm (§ 245, subd. (a)(2)) and found true two sentence enhancement allegations as to that crime—personal use of a firearm (§ 12022.5, subd. (a)) and personal infliction of GBI under circumstances involving domestic violence (§ 12022.7, subd. (e)). The trial court imposed sentences for both enhancements. The Court of Appeal held that section 654 "prohibited imposing both the firearm-use enhancement and the great-bodily injury enhancements," and stayed the sentence for the firearm-use enhancement. (Ahmed, supra, 53 Cal.4th at p. 824.)

Subdivision (a) of section 654 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."

The question before our Supreme Court in Ahmed was "whether section 654 prohibit[ed] imposition of both enhancements because both apply to the same act." (Ahmed, supra, 53 Cal.4th at p. 825.) The majority of the Ahmed court noted the answer to this question depends on the sentencing statutes themselves. (Id. at p. 826.) If the sentencing statutes supply the answer whether multiple enhancements can be imposed, which the court noted will "often" be the case, then a court should "simply apply the answer found in the specific statutes and not consider the more general section 654." (Ibid.) However, if the specific statutes do not provide the answer, then section 654, as a "default" provision, will apply to determine whether multiple enhancements may be imposed. (Ibid.)

The majority in Ahmed turned to the sentencing statutes at issue there, which also happen to be the same statutes at issue in the instant case. (Ahmed, supra, 53 Cal.4th at p. 827.)

B. Sentencing Statute

Specifically, section 1170.1, subdivision (f), provides: "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury." (Italics added.)

Section 1170.1, subdivision (g), provides: "When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm." (Italics added.)

Focusing on the specific statutes at issue, the majority in Ahmed noted that subdivisions (f) and (g) "mirror each other: subdivision (f) of section 1170.1 concerns weapon enhancements, and subdivision (g) of that section says the equivalent about great-bodily-injury enhancements. Together, they clearly bar imposing two or more weapon enhancements for the same offense (subd. (f)) and two or more great-bodily-injury enhancements for the same offense (subd. (g)). The second sentence of each subdivision also seems to permit imposing both one weapon enhancement and one great- bodily-injury enhancement for the same crime when both apply. In other words, if, as here, the defendant both uses a firearm and inflicts great bodily injury, these two subdivisions seem to permit imposing both enhancements." (Ahmed, supra, 53 Cal.4th at p. 827.)

Relying on legislative history and the history of the amendments of section 1170.1 leading to its current subdivisions (f) and (g), the majority in Ahmed found clear legislative intent to "permit the sentencing court to impose both one weapon enhancement and one great-bodily-enhancement for all crimes." (Ahmed, supra, 53 Cal.4th at p. 829.)

C. Analysis

Here, the trial court imposed one weapon enhancement and one GBI enhancement. Murillo argued in his previous briefing that the language of subdivisions (f) and (g) of section 1170.1 did not, in and of itself, preclude the application of section 654. A majority of this court in its December 15, 2011 vacated decision rejected this argument and concluded section 654 did not apply and the trial court property imposed the weapon-use and infliction of injury enhancements.

In considering the supplemental briefing of the parties we note that Murillo wisely concedes that Ahmed "governs the issue in this case" and fully supports this court's conclusion affirming the application of consecutive enhancements for section 1170.1, subdivisions (f) and (g).

DISPOSITION

The judgment of conviction is affirmed.

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BENKE, Acting P. J.

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NARES, J.

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McDONALD, J.

WE CONCUR:


Summaries of

People v. Murillo

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Feb 16, 2012
No. D058142 (Cal. Ct. App. Feb. 16, 2012)
Case details for

People v. Murillo

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RUDY J. MURILLO, Defendant and…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Feb 16, 2012

Citations

No. D058142 (Cal. Ct. App. Feb. 16, 2012)