Summary
In People v Quanstrom, 93 Mich. 254; 53 N.W. 165 (1892), defendant argued that his wife could not file a complaint against him for bigamy or testify against him.
Summary of this case from People v. LoveOpinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB903049. Kyle S. Brodie, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
INTRODUCTION
Donald Eugene Quanstrom (defendant) appeals two of four felony convictions: one for assault with a deadly weapon and one for assault with a deadly weapon with infliction of great bodily injury. We will affirm.
FACTS AND PROCEDURAL HISTORY
On April 13, 2009, defendant and the victim were driving north in adjacent lanes on “E” Street in San Bernardino. The victim was in a white Ford Focusin the right lane and defendant was in a red Ford truck in the left lane. As the victim approached a bus in his lane, he pulled in front of defendant, forcing defendant to brake and swerve into the left-turn lane to avoid a collision. Defendant became angry. He pulled to the right lane and passed the victim on the right, then cut back in front of him. When both drivers had to stop for a red light, defendant yelled, “Learn how to drive, you fucking Nigger, ” or words to that effect, at the victim. In response, when the two cars were stopped at another intersection, the victim “flipped him off” before turning right. Defendant also turned right and gave chase. He rammed the rear of the Focus with his truck, pushed the car along for some distance, then backed up, approached the Focus from its right side, rammed it again, and caused it to spin around out of control. At the time of the initial, rear-end, collision, defendant and the victim were traveling 40-45 miles per hour. Defendant later said that with the subsequent side collision, he was attempting to execute what he thought was a “[p]ursuit intervention technique” or “pit maneuver” he had seen on television. After stopping, both parties called the police. The victim said he had been rammed by another vehicle; defendant said the victim had pointed a gun at him. The police officer, who searched the victim, the victim’s car, and the area where the parties were stopped, found no gun or anything that resembled a gun. The police arrested defendant.
The victim, whose back and neck were hurting, went to a hospital in Gardena that evening where he was given pain medicine and referred to a chiropractor. Subsequently, he received physical therapy and injections in his back. His injuries kept him from his normal activities.
An information filed April 23, 2010, charged defendant with two felonies: assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count 1); and assault with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1), count 2.) The information alleged, as to both counts, that defendant personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)), causing the offense to become a serious felony (§ 1192.7, subd. (c)(8)).
All further statutory references are to the Penal Code unless otherwise indicated.
At trial, the victim, investigating police officers, and defendant testified to the facts as recited above. The victim said that at the time of the incident, he thought he was going to die. Anesthesiologist and pain management specialist Dr. David Shawa testified that he had seen the victim as a patient after the incident. The doctor said that the victim had “lumbar facet syndrome” and “cervical facet syndrome, ” inflammatory conditions that were “what usually people involved in motor vehicle accidents have.” Dr. Shawa had treated the victim with physical therapy and injections to his back.
On April 30, 2010, a jury found defendant guilty on both counts and found the related great bodily injury allegations true. On June 7, 2010, the trial court sentenced defendant to seven years in state prison: the upper term of four years on count 1, plus three consecutive years for the allegation of great bodily injury. Sentence on count 2 and its related allegation were stayed pursuant to section 654.
In view of unusually strong family and community support as reflected in 15 letters submitted to the trial court, as well as by a statement in mitigation submitted by the prosecutor, the trial court suspended the sentence and granted defendant probation, with terms and conditions, to be followed by five years of parole. One condition was that defendant serve 365 days in county jail; another was that he pay victim restitution of $27,200.97, the amount paid on the victim’s behalf by the California Victim Compensation and Government Claims Board.
DISCUSSION
Defendant argues at some length that one of his two convictions for assault with a deadly weapon must be reversed because he “may not stand convicted twice of the identical offense for the same act.” Bootstrapping to this argument, he further insists that one of the jury’s findings of great bodily injury must be reversed because the evidence does not show that defendant committed two assaults and that in each assault he inflicted great bodily injury.
Defendant is simply wrong. Although it is unclear which of his two back injuries resulted from which assault, the evidence showed that he committed at least two assaults, and that as a result of those assaults the victim sustained two separate injuries.
Sections 654 and 954 and the Standard of Review
“In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. ‘In California, a single act or course of conduct by a defendant can lead to convictions “of any number of the offenses charged.”’” (People v. Reed (2006) 38 Cal.4th 1224, 1226; see also §§ 654, 954.) “Unless one offense is necessarily included in the other [citation], multiple convictions can be based upon single criminal act or an indivisible course of conduct.” (People v. Benavides (2005) 35 Cal.4th 69, 97; see also § 954; accord, Reed at pp. 1228-1229.)
“Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) “‘If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’” (People v. Hairston (2009) 174 Cal.App.4th 231, 240.)
“‘A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.’ [Citation.]” (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.) “The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. [Citations.] ‘We must “view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” [Citation.]’ [Citation.]” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.) Neither the fact that there was one victim common to both crimes, nor the fact that the crimes were proximate in time, alone creates a single course of conduct or precludes punishment for more than one crime. (People v. McGahuey (1981) 121 Cal.App.3d 524, 529-530.)
Assault with a Deadly Weapon
Defendant is correct that Penal Code section 245 defines the single crime of assault with a deadly weapon that can be committed in two different ways. A person may violate Penal Code section 245, subdivision (a)(1), by committing an assault upon the person of another with a deadly weapon other than a firearm or by means of force likely to produce great bodily injury. (People v. Winters (2001) 93 Cal.App.4th 273, 275; see also Pen. Code, § 245, subd. (a)(1); In re Mosely (1970) 1 Cal.3d 913, 919, fn 5.) A “‘deadly weapon’” can be any object that is used in such a manner as to be capable of producing or likely to produce death or great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) A motor vehicle can be a deadly weapon. (Veh. Code, § 13351.5)
Where defendant goes wrong is in assuming that he committed only a single crime. Defendant argues (1) that his several acts of ramming the victim’s vehicle amounted to just one act or indivisible course of conduct; (2) that under the rule prohibiting multiple convictions based on necessarily included offenses, he cannot be convicted of two violations of section 245, subdivision (a)(1), based on “the same act”; and finally (3) that, although “the record contains evidence that he struck [the victim]’s car more than once... [¶]... [it] does not allow for an inference that [he] had multiple intents or objectives in striking [the victim]’s car.” Defendant is wrong on all points, and the validity of his position is defeated by the failure of his first contention.
Defendant is correct that the record contains evidence that he struck the victim’s car more than once. According to both parties, he struck it several times. The victim said that defendant rammed him “three or four times” and that, after the first time, “he took me up the street like he kept pushing me... and he backed up and rammed me again and then I started to spin and he rammed me, like went through.” Defendant testified first that he was angry and, if somewhat circuitously, admitted that he engaged in at least two separate attacks upon the victim: “I did bump him once in the rear and then... I did... a pit maneuver.” (Italics added.) A pit maneuver, he said, is when “you just basically put your vehicle on the side of theirs back toward the back and push him around and they slide around.”
According to one of the testifying police officers, a pit maneuver performed at speeds over 25 miles per hour is dangerous and can result in death or injury to the person “pitted, ” to other motorists, or to pedestrians.
Only by characterizing his intents and objectives at a high level of generality, can defendant credibly argue that his conduct cannot be the basis of two separate convictions. The first assault consisted of a high-speed rear-end collision. The second assault occurred after defendant backed up and adopted a new approach from a different angle and for an apparently different purpose: to sideswipe the victim in a “pit maneuver.” Even though defendant testified that his intent was only to stop the victim’s car and not to hurt him, there was no evidence that a pit maneuver includes a preliminary rear-end collision or that defendant would not understand that rear-ending someone at high speed would be expected to hurt and frighten the victim. Both of which he succeeded in doing. It was thus not unreasonable for the jury to conclude that he had committed more than a single assault with more than one intent: first to vent his anger and hurt and frighten the victim, and then to force him to stop. The legal consequences of these separate acts were two convictions, even if, under section 654, he cannot be punished for both of them.
DISPOSITION
The solution for tension between sections 654 and 954 is to permit multiple convictions but to avoid multiple punishments by staying execution of the sentence on all but one of the convictions. (People v. Ortega (1998) 19 Cal.4th 686, 692; People v. Johnson (2007) 150 Cal.App.4th 1467, 1474.) That is exactly what the trial court did in this case. Although defendant received two convictions for his separate acts, he is being punished only once, as is allowed by section 654. The judgment is affirmed.
Although, of course, the fact that he has two separate serious and violent convictions may in the future subject him to sentencing as a third-striker under the three strikes law should he commit another violent felony. (People v. Benson (1998) 18 Cal.4th 24, 34-35.)
We concur: RICHLI J., KING J.