Opinion
C083508
05-31-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ANTHONY ORIARTE, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F05106)
A jury found defendant Daniel Anthony Oriarte guilty of multiple counts including simple assault, false imprisonment, criminal threats, negligent discharge of a firearm, and spousal battery. On appeal, defendant contends insufficient evidence supported his simple assault conviction and that Penal Code section 654 proscribed punishment for his convictions for criminal threats, negligent discharge of a firearm, and spousal battery. We reverse the simple assault conviction and remand for resentencing as detailed post.
Undesignated statutory references are to the Penal Code.
BACKGROUND
The victim had been married to defendant for eight months prior to the charged incident. During their marriage defendant physically abused her. The night of the incident, the victim had been spending time with defendant at his house. They had both used methamphetamine and consumed alcohol that day. That night, she told defendant she wanted to end the relationship. They argued and defendant left.
The victim testified that when she drinks alcohol while using methamphetamine, "I tend not to remember everything."
After the argument, the victim drove to the home of defendant's friend. There, she used methamphetamine and had sex with defendant's friend.
Late that night, she texted defendant that she wanted to come home. The victim drove to a nearby convenience store, and defendant walked to meet her there. Defendant got in the victim's car, and they drove to a park. At the park, they had sex. At some point, defendant got upset when she told him she had gone to the friend's house. The victim later told law enforcement that defendant "pulled out a gun" and said, "Bitch, I'll shoot you. You will regret leaving me."
The victim, however, testified to no memory of that. She did testify that she had "maybe" seen defendant with a red and black revolver that day.
They drove back to the convenience store because defendant wanted the victim to give him $200. The victim went in the store and withdrew $200 from an ATM. But she decided not to give the money to defendant, and instead gave it to the clerk, to hold. When defendant asked for the money, she told him she did not have it. Defendant yelled then drove off in the victim's car. Before leaving, he said he would light the car on fire or otherwise damage her belongings.
About two minutes later, defendant returned. Another convenience store patron saw what happened next. Defendant got out of the car and angrily asked the victim, "did you call the cops on me?" The victim said she had not. Defendant then ran up, grabbed her arms, and dragged her toward the car. He said, "if you don't get in the car, I'm going to shoot you."
Defendant threw the victim up against the car. As he pushed her against the car, he opened the car door and "slammed" the victim inside. He twice threw the side of his body against her, "kind of like body slamming her." When defendant shut the door, the victim's legs were hanging out the window. Defendant then drove away.
An officer testified the victim reported, "He hit me a few times in the head," and she indicated the blows landed "just all over" her face. The officer, however, did not see any injury to the victim's face or head. At trial, the victim denied any memory of defendant hitting her or reporting that to the officer.
During that encounter, the convenience store patron did not see a weapon. But after the incident, the victim told an officer that during the encounter defendant, "had a gun in his hand, and I saw him put the gun in his pocket."
Defendant then drove away with the victim. As he drove, the victim heard a gun go off twice.
Later that night, after police pulled over the car, an officer found a black and red revolver behind a loose door panel. The gun had two live rounds and three expended rounds. Gunshot residue was found on defendant's palm.
The jury was instructed on unanimity. (CALCRIM No. 3500.) It acquitted defendant of kidnapping, but found him guilty of the lesser included offense false imprisonment. (§ 236; count one.) It similarly acquitted him of assault with a firearm but found him guilty of simple assault. (§ 240; count two.) The jury also found defendant guilty of criminal threats (§ 422; count three), negligently discharging a firearm (§ 246.3; count four), unlawfully possessing a firearm (§ 29800, subd (a)(1); count five), and misdemeanor spousal battery (§ 243, subd. (e)(1); count six). The trial court found defendant had served a prior prison term. (§ 667.5, subd. (b).)
The trial court imposed a six-year aggregate prison term, consisting of the three-year upper term for false imprisonment, eight months each (one-third the middle term) for criminal threats, negligently discharging a firearm, and unlawfully possessing a firearm, and a one-year prior prison term enhancement. It also imposed a one-year jail term for the misdemeanor spousal battery count, to be served consecutively and before the prison term commenced. The court imposed "no additional time" on count two, simple assault.
DISCUSSION
I
Sufficient Evidence of Simple Assault
Defendant first contends insufficient evidence supports his simple assault conviction. Simple assault is "an unlawful attempt, coupled with a present ability, to commit a battery." (§ 240; People v. Chance (2008) 44 Cal.4th 1164, 1167 (Chance).)
Defendant concedes he violated multiple laws but maintains the prosecution offered no evidence of an unsuccessful attempt to inflict harm on the victim. The People point to two instances of defendant's conduct to support the assault conviction: (1) in the park, defendant pulled out a gun and said, "Bitch, I'll shoot you. You will regret leaving me"; and (2) defendant later fired two rounds from the gun in the car. We agree with defendant that the record does not support the simple assault conviction.
Evidence defendant "pulled out a gun" is itself insufficient to constitute simple assault. Assault, a general intent crime, requires proof " 'the defendant wilfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery.' " (Chance, supra, 44 Cal.4th at p. 1169.) There must be an act done toward the commission of a battery and to all appearances the next move would complete the battery. (Id. at p. 1170.) Here, such evidence is absent. The record reflects only that defendant "pulled out a gun." Where it was pulled from, how it was held, and what was done with it, subsequently or contemporaneously, is unknown. The gun could have been momentarily lifted and returned whence it came. It may have been placed in defendant's lap, under the seat, or in the back seat of the car. It may have been held to the side, by the barrel, or in a manner blocking the barrel. We simply do not know. And there is no evidence the gun was pointed or brandished after being "pulled out."
In Chance, the defendant had pointed the gun, but mistakenly pointed it away from the victim. (Chance, supra, 44 Cal.4th at p. 1168.) Chance was aiming his gun, attempting to ambush a pursuing officer, when the officer approached Chance from behind and arrested him. (Id. at pp. 1168-1169.) In upholding the conviction, the court cited a 1841 New York case: " 'There need not be even a direct attempt at violence; but any indirect preparation towards it, under the circumstances mentioned, such as drawing a sword or bayonet, or even laying one's hand upon his sword, would be sufficient.' " (Id. at p. 1172 citing Hays v. The People (N.Y. Sup.Ct.1841) 1 Hill 351, 353.) But Chance considered only whether the "present ability" to commit a battery prong of an assault conviction was satisfied. (Id. at p. 1167.) Chance did not consider, as we do here, whether defendant did an act that by its nature will probably and directly result in injury to another. (Chance had conceded that prong, see id. at p. 1171.)
Further, defendant's words, assuming they were contemporaneous to the act, do not render his act an assault. To be sure, assault may exist where a defendant imposes an immediate condition backed up by the threat of violence. (See People v. McMakin (1857) 8 Cal. 547, 548-549 [pointing gun downward while threatening to shoot the victim if he did not leave constituted assault].) But, here, assault by conditional threat was neither charged, instructed, nor argued. Indeed, assault based on a conditional threat requires a defendant to compel immediate action from the victim, conduct not apparent from this record. (See CALCRIM No. 916.)
The parties do not brief whether the jury could have found simple assault in the context of defendant's actions at the convenience store, where (with gun in hand) he told the victim, "if you don't get in the car, I'm going to shoot you." This conduct is closer to assault by conditional threat than the conduct the People argue constitutes simple assault here. But assault by conditional threat was not a possible theory of conviction here, as we explain above. Therefore, we, too, will refrain from discussing it further.
Similarly, shooting the gun out the window into the air (and not in anyone's direction) was not assault, though it certainly was a negligent discharge of a firearm. (See People v. Hood (1969) 1 Cal.3d 444, 453 ["it is not an assault to fire a gun in the air for the purpose of frightening another"]; People v. Carmen (1951) 36 Cal.2d 768, 775 [same].)
Finally, we note that defendant's spousal battery conviction preludes a simple assault conviction for the same conduct. "[S]imple assault is an offense included within battery." (People v. Yeats (1977) 66 Cal.App.3d 874, 878.) Multiple convictions based on necessarily included offenses are prohibited. (People v. Sloan (2007) 42 Cal.4th 110, 116.) Therefore, the conduct supporting the battery charge (defendant's attack on the victim in the convenience store parking lot) cannot also form the basis for the assault conviction.
We will therefore reverse the simple assault conviction for insufficient evidence.
II
Section 654Defendant next contends section 654 proscribed punishment for his convictions for (1) criminal threats, (2) negligent discharge of a firearm, and (3) spousal battery. He reasons those convictions arose from a single course of conduct aimed at restraining the victim, for which he was punished under the false imprisonment count. We agree only as to the spousal battery count.
Though a person may be convicted of more than one crime for the same act, section 654 proscribes multiple punishments for the same act. (§§ 654, 954; People v. Correa (2012) 54 Cal.4th 331, 337.) An "act" can include a course of conduct. (Id. at p. 335.)
When a course of conduct causes multiple offenses--each capable of being independently committed--section 654's application turns on whether each conviction was based on a separate and divisible transaction. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Whether a course of conduct is divisible turns on the defendant's intent and objective. (Ibid.) " '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.' " (People v. Correa, supra, 54 Cal.4th at pp. 335-336.) But if a defendant entertained multiple independent objectives, multiple punishment is permitted. (People v. Liu (1996) 46 Cal.App.4th 1119, 1134.)
A trial court's finding that a defendant held multiple criminal objectives will be upheld if supported by substantial evidence. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) Where the trial court makes no express section 654 findings, we consider whether substantial evidence supports an implied finding of separate intent and objective. (People v. Islas (2012) 210 Cal.App.4th 116, 129.)
Here, supporting the criminal threats conviction, defendant told the victim at the park, "Bitch, I'll shoot you. You will regret leaving me." That statement occurred well before the conduct underlying the false imprisonment and reasonably encompassed a separate intent. Therefore, section 654 does not apply.
Similarly, as to the negligent discharge of a firearm count, defendant shot the gun after the false imprisonment had been accomplished. Thus, his intent in firing the gun may have been to torment or intimidate the victim or to blow off steam or celebrate but there is no evidence it was a shared intent to keep her in the car. Section 654 does not apply.
However, as to spousal battery, substantial evidence does not support an implied finding that defendant entertained multiple independent objectives. A witness testified that after defendant "slammed" the victim into the car, he twice threw himself on her, or body slammed her, to get her into the car. This description also fits with the victim's description of being hit "all over" her head and the concurrent observation by law enforcement that she had no visible injury to her face. At the same time and immediately before battering the victim, defendant yelled at her to get into the car as he dragged her toward it. The reasonable inference is defendant battered the victim with the intent to get her into the car and keep her there, which is part and parcel of the objective underlying his false imprisonment conviction. Therefore, section 654 applies. The one year (consecutive) jail term for the misdemeanor spousal battery count of conviction, count six, should have been stayed.
Defendant has presumably completed his one-year jail term for count six, which was ordered to be served prior to his prison term. Sentence on this count should have been stayed; thus, defendant is entitled to credit for his time served on count six applied toward the remainder of his unstayed sentence. Therefore, rather than merely modifying the judgment to stay sentence on count six, we also remand for recalculation of credits.
DISPOSITION
The conviction for simple assault (§ 240; count two) is reversed. The one-year sentence imposed for spousal battery (§ 243, subd. (e); count six) is stayed. As modified, the judgment is affirmed. The matter is remanded to the trial court for recalculation of credits. Further, the trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, J. We concur: /s/_________
Robie, Acting P. J. /s/_________
Murray, J.