Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge. Super.Ct.Nos. INF054164 & INF055445
Marylou Hillberg, 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, David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
Defendant Bobby Enrique Patron (defendant) appeals as error the trial court’s failure to stay the sentence on one of his felony convictions pursuant to the provisions of Penal Code section 654 and its imposition of consecutive sentences on the same two convictions. We will remand the matter with directions for the trial court to correct three minor sentencing errors and will otherwise affirm the judgment.
The facts are taken from the preliminary hearing transcript of September 15, 2006, and from the probation report filed November 9, 2007.
On May 18, 2007, the Riverside County District Attorney filed a second amended information charging defendant with a total of seven felonies committed in 2006. The charged offenses included robberies of five separate victims and assault by means of force likely to produce great bodily injury against two victims. (Pen. Code, §§ 211, 245 subd. (a)(1).) The information alleged that in February 2006 he robbed E.S. (count 7); that on April 18, 2006, he robbed and assaulted M.L. (counts 1 & 3) and robbed S.P. (count 2); that on August 15, 2006, he robbed O.M., assaulted J.M., and again robbed E.S. (counts 4, 5, & 6). As enhancements, the information alleged that in relation to counts 1 and 3 defendant personally inflicted great bodily injury upon M.L. (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8)); that he committed the offenses alleged in counts 4, 5, 6, and 7 while out on bail (Pen. Code, § 12022.1); and that as to all counts he was over 16 years of age when they were committed (Welf. & Inst. Code, § 707, subds. (b), (d)(1)).
Date cites in this opinion will be as follows: the full date, including the year, will be given the first time any date is cited in a new paragraph; thereafter, unless it has changed, the year will not again be included in date cites within a given paragraph.
The information also listed the following as aggravating facts: that the offenses against M.L. involved great violence disclosing a high degree of cruelty, viciousness, or callousness; that M.L. was particularly vulnerable; that defendant occupied a position of leadership in the commission of the crime and induced others to participate; that the offense involved the taking of great monetary value; and that defendant’s violent conduct indicated a serious danger to society. (Cal. Rules of Court, rule 4.421(a)(1), (a)(3), (a)(4), (a)(9), (b)(1).)
On August 8, 2007, defendant pled guilty to all charges and enhancements. The court set sentencing for October 5 and referred the matter for a presentence probation report.
The report, filed November 9, 2007, summarized the facts about the attack on M.L. (M.L. or the victim) from sheriffs’ investigative accounts and from an interview with defendant. Bystanders and witnesses to the attack, including the victim’s girlfriend, M.V., told sheriffs’ deputies that defendant and two other males had approached M.L. while he was sitting on the ground with his girlfriend by a fence in a park in La Quinta and told him that if he did not give defendant his cell phone, “I’m going to fuck you up.” When M.L. refused to surrender his phone, defendant grabbed the fence behind M.L. with both hands and struck the victim in the face with his knee three to five times. M.L., who was rendered unconscious during the attack, could remember only the first blow. M.V. told defendant to stop but he kept hitting M.L. A passing jogger, O.A., saw defendant repeatedly kneeing the victim in the face and pulled him off the victim and to the ground. Defendant called for help from his two friends and when O.A. realized that the fight would be three against one, he released defendant. Defendant wanted to continue the fight, but his friends persuaded him to leave. Defendant then took M.L.’s cell phone and he and his two companions ran away. O.A. followed the three. Eventually defendant threatened O.A. with a baseball bat.
In an interview on September 25, 2007, defendant told the probation officer that he had a long-standing problem with alcohol and had consumed 16 twelve-ounce bottles of beer and 16 cold tablets after school on the day of the attack. He said he was very intoxicated and could not remember much of what had happened or his conversation with M.L. about the cell phone, but he did remember that he had kneed the victim once and only once.
When M.L.’s mother arrived, she found her 14-year-old son lying unconscious in a pool of blood. He had suffered multiple facial fractures, including a broken eye socket, a fractured cheek, a fractured jaw, a broken nose, and bleeding into his eye. Following the attack, he required five surgeries to reconstruct his face. Repair of the orbital fracture involved the insertion of a titanium plate and screws. The doctor who performed the surgery noted that “. . . the brutal nature of this attack and the extent of this patient’s injuries and extensive head trauma were so severe that any further injuries to his head or face could be life threatening.”
At the sentencing hearing on November 9, 2007, the court chose count 3, assault with great bodily injury to M.L. (Pen. Code, § 245, subd. (a)(1)), as the principal term. The court selected the upper term, four years, on that count because of its finding that “the factors in aggravation of that particular crime substantially outweigh[ed] the factors in mitigation . . . .” In addition, the court sentenced defendant to one year (one-third the midterm) for each of the robberies in counts 1, 2, 4, 6, and 7; plus one year (one-third the midterm) for the assault with great bodily injury to J.M. in count 5. In enhancement, the court sentenced defendant to three years for the personal infliction of great bodily injury (§ 12022.7, subd. (a)) as to count 3, and stayed a one-year enhancement (§ 12022.7, subd. (a)) as to count 1. Finally, the court imposed a two-year enhancement as to count 7 for its having been committed while defendant was out on bail. (§ 12022.1.) All of the terms were to be served consecutively. Defendant’s total sentence was 15 years.
Explaining its choice to sentence defendant to separate consecutive terms for counts 1 and 3, the court said, “I believe consecutive sentences are appropriate for the crimes alleged in Count 1 and Count 3. They were separate offenses, involve—one of which involving a great deal of violence, both of which involving use of force or fear or violence and so I think consecutive sentences are appropriate for Counts 1 and 3.”
DISCUSSION
On appeal, defendant makes two related arguments: (1) that the trial court violated Penal Code section 654 by imposing separate sentences for the robbery and the assault because, he asserts, the latter was simply the means to accomplish the former; and (2) that by determining that the crimes were separate for purposes of section 654, the court made possible the imposition of consecutive rather than concurrent sentences and thus violated his constitutional right to trial by jury as explicated in Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
In addition to disagreeing with defendant’s Penal Code section 654 and Blakely arguments, the People point out three sentencing errors requiring correction.
Penal Code Section 654Penal Code section 654 prohibits multiple punishments for the same criminal act. Where the statute precludes multiple punishment, sentence must be stayed on all but one count. (§ 654; People v. Ortega (1998) 19 Cal.4th 686, 692.) “‘The initial inquiry in any section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.] Whether the defendant maintained multiple criminal objectives is determined from all the circumstances and is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it. [Citation.]” (People v. Porter (1987) 194 Cal.App.3d 34, 38.) When a court sentences a defendant to separate terms, there is an implicit determination that the defendant held more than one criminal objective. (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Nelson (1989) 211 Cal.App.3d 634, 638.) Gratuitous acts of violence against an incapacitated and unresisting victim may be found not incidental to robbery for purposes section 654. (People v. Cleveland (2001) 87 Cal.App.4th 263, 272; People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299-1300.)
Here, despite defendant’s protestations to the contrary, there was substantial evidence in the circumstances surrounding his attack on the victim from which the trial court could reasonably conclude that he harbored more than one criminal intent. Defendant’s repeated assertion “there was but one act of violence” and “one kick and only one kick” is belied by the record and by the extent and nature of the victim’s injuries. It is true that the court had before it defendant’s self-serving statement to the probation officer that, although he could remember almost nothing else about the attack on M.L., he could definitely remember that he kneed the victim only one time. And it is also true that M.L., who was rendered unconscious, could remember only the first blow. However, at least two witnesses—the jogger who stopped the attack and the victim’s 14-year-old girlfriend who was sitting beside the victim during the attack—told investigating officers that defendant kneed M.L. repeatedly and refused to cease his assault until he was forced to do so. Via the probation officer’s report, properly considered at sentencing, this information too was before the court. (People v. Arbuckle (1978) 22 Cal.3d 749, 754.)
The nature and extent of M.L.’s injuries were also inconsistent with defendant’s statement that he struck the victim only once. The surgeon who repaired M.L.’s face described his injuries as constituting “extensive head trauma.” It strains credulity to believe that defendant could have broken so many parts of the victim’s face—from his jaw all the way up to his eye socket and including his nose and eyes—with just one blow. The physical evidence thus did not support the conclusion that the assault was just a single act of violence incidental to a robbery. It was more consistent with what the witnesses who spoke to the investigating deputies had reported. The injuries were caused by a series of acts and those acts evidenced more than one criminal objective.
Finally, the amount of force defendant inflicted on M.L. was far more extreme than necessary to achieve a mere theft. “As the court in People v. Nguyen (1988) 204 Cal.App.3d 181, 191 . . . observed: ‘at some point the means to achieve an objective may become so extreme they can no longer be termed “incidental” and must be considered to express a different and more sinister goal than mere successful commission of the original crime.’” (People v. Cleveland, supra, 87 Cal.App.4th at p. 272.) The Nguyen court’s words are a perfect description of what happened in this case. Had defendant been interested only in his original crime—stealing the cell phone—he could easily have taken it from M.L. after the first blow. He had a vulnerable young victim on the ground, two friends to back him up, and only a 14-year-old girl to protest his actions. The fact that he had to be physically pulled off M.L. to make him cease the attack clearly demonstrated that inflicting gratuitous violent injury was a separate and more sinister goal driven by a separate and more sinister criminal intent.
In sum, because there was substantial evidence supporting the trial court’s determination that counts 1 and 3 constituted separate crimes motivated by separate criminal objectives, the court did not err in sentencing defendant to separate terms.
Blakely Claim
Defendant’s second argument is that the trial court’s determination that he had separate criminal objectives and was therefore not entitled to the benefit of Penal Code section 654 made him subject to a longer period of incarceration (via consecutive sentences) and thus violated his constitutional right to trial by jury. He claims that under the United States Supreme Court’s decision in Blakely v. Washington, supra, 542 U.S. 296, the determination should have been made by a jury rather than by a judge. As the People point out and defendant acknowledges, on this point we are bound by the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black), overruled on other grounds in Cunningham v. California (2007) 549 U.S. 270, that consecutive sentencing for separate crimes is not a violation of Blakely. (Black, at pp. 1261-1263; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The statute at issue in Black was Penal Code section 669. (People v. Black, supra, 35 Cal.4th at pp. 1261-1262.) Section 669 requires the trial court to specify, within 60 days after imprisonment for a second crime begins, whether sentences for multiple crimes “upon which sentence is ordered to be executed” are to be served consecutively or concurrently. If the court fails to so specify, the sentences are to be served concurrently. Like the parties, we are aware that a case presenting the issue of whether the Sixth Amendment as construed in Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely requires that facts (other than prior convictions) necessary to impose consecutive sentences be found by the jury or admitted by the defendant is now under review by the United States Supreme Court in Oregon v. Ice (2008) ___ U.S. ___ [128 S.Ct. 1657, 170 L.Ed.2d 353].
Sentencing errors
The People bring to our attention the following: that the trial court miscalculated defendant’s presentence custody credits under Penal Code section 2933.1 by one day; that the court erred by staying rather than imposing or striking the section 12022.7, subdivision (a), great bodily injury enhancement attached to count 1; and that the section 12022.1 two-year enhancement on count 7 for the crime having been committed while defendant was out on bail is incorrectly shown on the abstract of judgment as a section 12022.7, subdivision (a), enhancement. The People are correct on each of these points and we will remand the matter to the trial court for the appropriate corrections.
DISPOSITION
The matter is remanded to the trial court for sentencing corrections. Specifically, the court is directed to recalculate defendant’s presentence custody credits under Penal Code section 2933.1; to exercise its discretion to either impose or strike the section 12022.7, subdivision (a), enhancement attached to count 1; to order the clerical correction of the abstract of judgment of the section 12022.1 enhancement attached to count 7; and to order all related corrections of the minute order and the abstract of judgment, and to forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
We concur: RICHLI, J., MILLER, J.