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People v. Nunez

California Court of Appeals, Third District, Yolo
Jul 24, 2008
No. C057139 (Cal. Ct. App. Jul. 24, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY NUNEZ, Defendant and Appellant. C057139 California Court of Appeal, Third District, Yolo July 24, 2008

NOT TO BE PUBLISHED

Super. Ct. No. CR072073.

RAYE, J.

After hearing testimony that defendant Mark Anthony Nunez struck his former girlfriend with his truck and ran over her leg, a jury found him guilty of three crimes: assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) -- count 1), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1) -- count 2), and infliction of corporal injury on a former cohabitant (§ 273.5, subd. (a) -- count 3). As to each crime, the jury also found true allegations that defendant inflicted great bodily injury on the victim. (§ 12022.7, subd. (a).)

All further statutory references are to the Penal Code.

At sentencing, the trial court stayed imposition of sentence on counts 2 and 3 because all crimes arose from “the very same behavior.”

On appeal, defendant contends he cannot be convicted of two violations of section 245 based on a single assault and asks that we reverse his conviction in count 2. The People concede the error, and we agree. But because we also find the trial court neglected to impose any sentence on count three, we shall remand for resentencing.

BACKGROUND

Defendant and his former girlfriend, Pamela, stayed the night at a West Sacramento motel. In the morning, they argued; Pamela left the motel room and walked to a nearby bus stop. Defendant followed her in his Tundra truck. She told defendant to leave her alone and ran away toward a neighboring motel. He followed in the truck, accelerated for 10 to 20 feet, and ultimately struck Pamela from behind with his truck and crashed into a pole. The truck’s tire ran over Pamela’s leg.

After the collision, defendant told a witness that it was an accident, while Pamela responded that he did it on purpose. Pamela later reported to the emergency room physician that she had been run over by her ex-boyfriend after “a verbal altercation.”

Pamela’s leg suffered a crush injury, and the skin developed dry gangrene.

Defendant was charged with assault with a deadly weapon in violation of section 245, subdivision (a)(1); assault by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(1); and infliction of corporal injury on a former cohabitant in violation of section 273.5, subdivision (a). As to each felony count, it was also alleged that defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).

The defense at trial was that defendant struck Pamela accidentally. Pamela’s testimony was consistent with that defense, and she further testified defendant was not inside the truck when it hit her.

The jury rejected his defense, convicted defendant on all three charges, and found all of the enhancements true.

At sentencing, the court found the lower term of imprisonment justified because defendant had no prior convictions. The court continued: “For a violation of Penal Code Section 245(a) as charged in Count 1, the low term is two years. [¶] For violation of Penal Code Section 245(a)(1) as charged in Count 2, the lower term is also two years, and for violation of Penal Code Section 273.5(a), the lower term is two years, as well. [¶] Count 2 and Count 3 are simply other descriptions of the very same behavior. They have slightly different elements, but it is the same behavior. [¶] So I cannot impose sentence as to Count 2 or Count 3. I would stay any sentence as to Count 2 and Count 3 pursuant to Penal Code Section 654.” The court also imposed a three-year great bodily injury enhancement.

The abstract of judgment, however, shows only that defendant was convicted of assault with a deadly weapon as charged in count 1. It contains no reference to defendant’s other convictions.

DISCUSSION

Count 1 of the information charged defendant with assaulting Pamela with a deadly weapon, to wit, his truck, in violation of section 245, subdivision (a)(1). Count 2 charged defendant with assaulting Pamela by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(1). The jury found defendant guilty of both counts. Defendant contends on appeal that these two counts constituted nothing more than alternative statements of a single offense. The People agree.

They are correct. Penal Code section 245, subdivision (a)(1) “encompasses two forms of prohibited conduct (assault with a deadly weapon other than a firearm or assault by means of force likely to produce great bodily injury),” but it “defines only one offense. ‘The offense of assault by means of force likely to produce great bodily injury is not an offense separate from . . . the offense of assault with a deadly weapon.’” (People v. McGee (1993) 15 Cal.App.4th 107, 110, quoting In re Mosley (1970) 1 Cal.3d 913, 919, fn. 5.) We accept defendant’s contention, and the People’s concession, that the evidence established only one act of assault.

Moreover, it is well established that a single criminal act cannot support multiple convictions under the same statutory provision. (E.g., People v. Craig (1941) 17 Cal.2d 453, 455 [only “one punishable offense of rape results from a single act of intercourse, although that act may be accomplished under more than one of the conditions or circumstances specified in the [statute’s] subdivisions. These subdivisions merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act”].) In those circumstances, multiple convictions are precluded; only one conviction can stand. (People v. Ortega (1998) 19 Cal.4th 686, 699-700 (Ortega); see People v. Moran (1970) 1 Cal.3d 755, 763.)

Here, because the evidence established a single act of assault, only one conviction for assault under section 245 is possible. Defendant’s conviction on count 2 must be reversed.

However, we note another error by the trial court.

When an act or indivisible course of conduct may be punished in different ways by different provisions of law, the general rule is multiple convictions may be sustained, but the defendant may be punished only pursuant to the provision that provides the longest potential term of punishment. (§ 654; Ortega, supra, 19 Cal.4th at p. 692.) In that circumstance, the remedy is to stay execution of sentence on all but one conviction. (Ortega, at p. 692.)

The trial court properly recognized that it cannot separately punish defendant for assault and for inflicting corporal injury on a former cohabitant when both crimes arose from the same act, acknowledging section 654’s prohibition on multiple punishments for convictions based upon a single act or course of conduct constituting an indivisible transaction. (People v. Pearson (1986) 42 Cal.3d 351, 359; Ortega, supra, 19 Cal.4th at p. 692.) As the court expressly found defendant’s convictions for assault with a deadly weapon and infliction of corporal injury on a former cohabitant arose from the “same behavior,” i.e., the same course of conduct, it would have properly applied section 654 by sentencing defendant on count 3 but staying execution of that sentence. (See People v. Floyd P. (1988) 198 Cal.App.3d 608, 612.)

Instead, it erred in concluding it “cannot impose sentence” on count 3. (Italics added.) We shall remand for the trial court to do so.

Finally, we note that the abstract of judgment failed to include any reference to defendant’s conviction on count 3. That was error. Even if sentence on a particular count is stayed pursuant to section 654, the abstract of judgment must reflect the defendant’s conviction on that count.

DISPOSITION

Defendant’s assault conviction on count 2 is reversed, and the trial court is directed to dismiss that count. On remand, the trial court is directed to sentence defendant on count 3 and thereafter to stay execution of that sentence. In all other respects, the judgment is affirmed. The trial court shall amend the abstract of judgment to reflect defendant’s conviction on count 3, together with the sentence imposed and stayed, and shall forward a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation.

We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.


Summaries of

People v. Nunez

California Court of Appeals, Third District, Yolo
Jul 24, 2008
No. C057139 (Cal. Ct. App. Jul. 24, 2008)
Case details for

People v. Nunez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY NUNEZ, Defendant and…

Court:California Court of Appeals, Third District, Yolo

Date published: Jul 24, 2008

Citations

No. C057139 (Cal. Ct. App. Jul. 24, 2008)