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People v. Pearson

California Court of Appeals, Fourth District, Second Division
Mar 5, 2008
No. E042606 (Cal. Ct. App. Mar. 5, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. WESLEY ALEX PEARSON, Defendant and Appellant. E042606 California Court of Appeal, Fourth District, Second Division March 5, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from the Superior Court of San Bernardino County No. FVI025252. John M. Tomberlin, Judge.

Stephen L. Miller, 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, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Garrett Beaumont, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

RAMIREZ P. J.

On appeal from a jury verdict, defendant Wesley Alex Pearson argues the trial court should have stayed the sentence on his conviction for corporal injury to a cohabitant, as well as the sentence on the related great bodily injury enhancement, pursuant to Penal Code section 654. Defendant also contends the trial court violated his constitutional right to a jury trial by imposing upper term sentences based on facts not found true by a jury.

All further statutory references are to the Penal Code unless otherwise indicated.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant lived with his mother and girlfriend in his mother’s home. On August 26, 2006, he arrived home about 11:00 p.m., after spending several hours in a bar; he started to beat up his girlfriend when she indicated she did not know where his drugs were. Defendant’s mother called the police. By the time a police officer arrived at the home, the girlfriend was missing her front tooth, had swelling and bruising on “every part of her face” and her ears, bruises on her arms and back, and cuts on her legs. Defendant smelled of alcohol and appeared “extremely angry.” Defendant was arrested and taken to jail, where he continued to be agitated, upset, and combative toward the booking officer.

A jury found defendant guilty of assault by means likely to produce great bodily injury in violation of section 245, subdivision (a)(1) (count 1); corporal injury to a cohabitant in violation of section 273.5, subdivision (a) (count 2); and obstructing or delaying a peace officer in violation of section 148, subdivision (a)(1) (count 3). The jury also found true special allegations that defendant personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (e), while committing counts 1 and 2. In a bifurcated trial, the court found defendant suffered a prior strike conviction pursuant to sections 1170.12, subdivisions (a) through (d), and 667, subdivision (b), and had served a prior prison term within the meaning of section 667.5, subdivision (b).

On count 1, assault with a deadly weapon, the trial court imposed 13 years in state prison, which is comprised of an aggravated term of four years, doubled to eight years because of the prior strike, plus five years for the great bodily injury enhancement. On count 2, cohabitant abuse, the trial court imposed a total consecutive sentence of three years four months. To arrive at the total consecutive term of three years four months, the trial court imposed one year (i.e., one-third of the middle term of three years), doubled to two years as a result of the prior strike, plus one year four months for the great bodily injury enhancement (i.e., one-third of the middle term of four years). In addition, the trial court imposed a one-year prior prison term enhancement for a grand total of 17 years four months in state prison. On count 3, obstructing a peace officer, the trial court imposed 112 days in jail, with credit for time served.

DISCUSSION

Section 654

Defendant contends it was error under section 654 for the court to impose separate, consecutive sentences on counts 1 and 2, because these offenses were committed during an indivisible course of conduct motivated by “a single, narrow, and well defined objective of recovering his drug stash.” He therefore argues we should stay the sentence on count 2, as well as the sentence on the related great bodily injury enhancement.

Section 654, subdivision (a), provides as follows: “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.” Here, the trial court did not discuss or make any specific findings on the application of section 654 during the sentencing hearing. As a result, we assume the record reflects a determination by the trial court that each crime had a separate objective. (See, e.g., People v. Blake (1998) 68 Cal.App.4th 509, 512.) On appeal, we will uphold such a determination if there is substantial evidence to support it. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)

“The purpose of [section 654] is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although these distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one of the separate offenses arising from the single act or omission—the offense carrying the highest punishment. [Citations.]” (People v. Hutchins, supra,90 Cal.App.4th at p. 1312.) However, if the acts were independent and none was merely incidental to another, the defendant may be punished separately for each offense even if the acts were committed closely in time and space. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Where there was a course of conduct which violated more than one statute, the focus of inquiry is whether the defendant entertained single or multiple criminal objectives. (People v. Macias (1982) 137 Cal.App.3d 465, 470.)

Here, there is substantial evidence to support a conclusion there were two distinct beatings motivated by different objectives rather than a single, indivisible beating motivated by a single objective. The victim testified defendant left the residence about 6:00 p.m. to go to a bar. He returned about 11:00 p.m., and she opened the gate for him to drive his car through. When he went inside, he was drunk but initially seemed relatively “calm.” He asked “where are my drugs?” He then became angry and started yelling and hitting her when she denied stealing his drugs. The beating took place inside the bedroom they shared. While she was attempting to get away, the mattress came off of the bed frame and she was dragged over the frame, causing cuts and bleeding on her legs. Other injuries sustained by the victim during this incident include black eyes and bruising on her face. The beating continued for approximately 10 minutes in the bedroom they shared. From this evidence, it can be inferred defendant’s initial objective in beating the victim was to obtain access to his drugs and/or to express his anger at the victim because she told him she did not know where his drugs were.

After beating the victim for about 10 minutes, defendant stopped, went into his closet, and got his drugs out of his jacket pocket. Defendant then left the house for about five minutes. When defendant returned, he began beating the victim again. This beating lasted another 20 minutes, which resulted in additional, more serious injuries to the victim. During the second beating, defendant hit the victim in the mouth and broke a capped front tooth. He also punched and kicked her several times, held her by the back of the shirt, and slammed her head onto an end table a few times. At some point during the second incident, the victim got down on the floor in the fetal position, and defendant kicked her in different places, including her head and ears.

Having accomplished his initial objective of obtaining access to his drugs following the first attack, it is reasonable to infer defendant had a new and different objective when he returned five minutes later.

In reaching our determination, we reject defendant’s argument that the five minutes in between the two distinct beatings was too “arbitrary and insignificant” to suggest he developed a new and different objective at that time. We also reject defendant’s related arguments that his “actions were the product of a drunken rage,” had a “mindless frenzied quality to them,” and as a result of his intoxicated state, he was simply not capable of pausing to reflect on anything during this brief time period. As defendant acknowledges, “[i]t is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.” (People v. Harrison (1989) 48 Cal.3d 321, 335.) Regardless of his level of intoxication and anger during the time in question, the evidence establishes defendant was capable of forming his initial objective of obtaining access to his drugs. As a result, it is reasonable to infer he was just as capable of forming a new and different intent or objective once his initial objective had been satisfied. Therefore, section 654 does not bar the imposition of separate, consecutive sentences for the two distinct offenses alleged in counts 1 and 2.

Aggravated Prison Terms

Relying on the Supreme Court’s recent decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), defendant contends the trial court violated his constitutional right to a jury trial by imposing an aggravated sentence of four years on count one, plus a five-year aggravated term for the great bodily injury enhancement, based on facts which were not admitted or found true by a jury. Although defendant acknowledges current case law does not support his argument, he raises the issue to preserve it for federal court review.

In Cunningham, the Supreme Court concluded California’s determinate sentencing law (DSL) violates a criminal defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the extent it allows trial courts to impose an aggravated upper prison term “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 127 S.Ct. at p. 860, italics added.) In imposing the aggravated term, the trial court indicated it had a copy of the probation report, had considered defendant’s criminal history, and found the upper terms appropriate based on defendant’s recidivism. The court noted defendant had “a criminal record that goes back to 1980,” which included prior prison terms and even a prior strike which were not alleged in the present case. Therefore, the facts the trial court relied on in imposing an aggravated term fall within the prior conviction exception to the constitutional rule set forth by the Supreme Court in Cunningham. Under these circumstances, a defendant is not “legally entitled” to the middle term sentence, and the upper term is therefore the “statutory maximum” that a trial court may impose without violating constitutional requirements. (People v. Black (2007) 41 Cal.4th 799, 811-820.) Nor is it constitutionally significant that in imposing the upper term the trial court may have also relied on other aggravating circumstances in imposing the upper term. (Ibid.) In short, the trial court in this case did not violate defendant’s constitutional right to a jury trial by imposing the upper term.

DISPOSITION

The judgment is affirmed.

We concur: KING J., MILLER. J.


Summaries of

People v. Pearson

California Court of Appeals, Fourth District, Second Division
Mar 5, 2008
No. E042606 (Cal. Ct. App. Mar. 5, 2008)
Case details for

People v. Pearson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. WESLEY ALEX PEARSON, Defendant…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Mar 5, 2008

Citations

No. E042606 (Cal. Ct. App. Mar. 5, 2008)