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People v. Vega

California Court of Appeals, Second District, Third Division
Apr 14, 2009
No. B198713 (Cal. Ct. App. Apr. 14, 2009)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Los Angeles County, No. BA301491, Stephen A. Marcus, Judge.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.


ALDRICH, J.

INTRODUCTION

A jury found defendant and appellant Christian De La Vega guilty of, among other things, the attempted murder of his girlfriend, Wendy B., with whom he began a sexual relationship when she was 14 and he was 36. Defendant forced Wendy to jump from a moving vehicle at gunpoint. Yet, on appeal, he contends there is insufficient evidence of an intent to kill and of premeditation. He makes the additional contention that reversal of his conviction for attempted murder is required because the jury, although orally instructed on the elements of attempted murder, did not receive the written attempted murder instruction. We hold that there was sufficient evidence of intent to kill and of premeditation and that any instructional error was harmless. We also reject a sentencing error claim, although we order a correction to the abstract of judgment. We therefore affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

A. The attempted murder of October 3, 2004.

Wendy B. met defendant in March 2004. She was 14. He was 36. From April to August 2004, Wendy repeatedly ran away from home to stay at an apartment where defendant would visit her (he could not stay because he was married). During this time, Wendy and defendant had sexual intercourse. He also hit her.

On October 3, 2004, Wendy was at the apartment with defendant. He awakened her, accused her of cheating on him, and slapped her. Wendy ran, but defendant caught her and put her in his van. As defendant drove, he punched Wendy’s face to the point she could barely see. Defendant parked the van and pointed a gun at her head. He told Wendy that if she didn’t admit to cheating on him, he would shoot her in the head and blow up the van with her body inside.

Defendant then drove toward Long Beach while holding the gun between his legs. While on the freeway going about 40 to 50 miles per hour, defendant told Wendy that if she didn’t jump out of the van, he would shoot her. After defendant repeated his threat, Wendy jumped out of the van. She rolled a few times, got up and hid in nearby bushes, afraid defendant would return. Wendy suffered a dislocated arm, scars, an open cut above her eyebrow, and “holes” on her hip and arm. She still cannot feel parts of her leg. Wendy told a paramedic who responded to the scene that she had been thrown, pushed out of or fell out of the car. She told a second paramedic that she had jumped from a vehicle because her boyfriend was beating her.

Wendy forgave defendant and continued to talk to him every day over the telephone and to see him.

B. The forcible rape of July 1, 2005.

By July 1, 2005, Wendy was back at home with her mother. Defendant called Wendy and accused her of cheating on him. Although she was scared, Wendy met him. She was pregnant with defendant’s child. Defendant drove Wendy to a motel. Defendant carried a gun into the motel room and told her to do what he said. She thought he meant to rape her. He gave her lingerie to put on, which she did because he said he would beat her if she didn’t. She went into the bathroom to put on the lingerie. Defendant followed and hit her head with the door. He then threw her on the bed and got on top of her. Wendy told him she didn’t want to have sex with him like that because it wasn’t making love. She pushed him away and told him to stop. He didn’t stop, and they had sexual intercourse, although she continued to tell him to stop. He took pictures of Wendy. She did not call the police because she was still in love with him.

She terminated the pregnancy in August 2005.

C. The assault on January 13, 2006.

Wendy continued to see defendant. He continued to be physically violent with her. On January 13, 2006, defendant called Wendy. When she told him she could not go out, he threatened to shoot up her house. She went outside, and he punched her. He pulled her arm to him so that she could feel his gun, and he told her he knew what she had been doing all day. As they walked he beat and kicked her. He hit her forehead with his gun, which created a scar, and he broke her finger. Defendant’s friend picked them up and took them to an apartment, where Wendy remained for two and a half weeks to heal. Although she had a splint for her broken finger, it still droops.

D. The unlawful sex on March 13, 2006.

Defendant came to Wendy’s house in February 2006. He again accused her of cheating on him and threatened to beat her. This time, Wendy called the police. Defendant was gone by the time they arrived. Wendy, however, continued to talk to defendant on the telephone until March 13. On that day, defendant picked her up in his car. He told her he knew she had been messing around on him. Defendant pulled out a sharp metal object and said that if she didn’t tell him he would choke or stab her. He parked in a garage, choked her and put the object to her face. He said he would kill her. Thinking that the only way to stop defendant was to have sex with him, Wendy pulled down her pants. They had sex, the result of which Wendy got pregnant. He took her home.

Wendy terminated the second pregnancy on May 24, 2006. DNA testing of fetal tissue could not exclude defendant as the father. There was a 99.99 percent probability he was the father.

Wendy had no further contact with him. To get away from defendant, Wendy left the country at the end of March 2006. She stayed away for seven days, returning on April 8.

E. The attempted murder of April 8, 2006.

During the evening of April 7, 2006 and continuing to the early morning of April 8, Ruben B., Wendy’s brother, was celebrating his birthday with family and a few friends, including Marcos M. Around 1:30 a.m., Marcos saw someone wearing all white standing outside Ruben’s house. Two to three people, including defendant, were by a fence. Defendant held something in his hand, but Marcos could not tell what it was. Gunshots were fired. Marcos was shot in the leg. Ruben was shot seven times, including in the stomach. He suffered injuries to his bladder and large intestine, and he was hospitalized for a week and a half.

Marcos and Ruben identified defendant as the shooter from a photographic six-pack. Ten ammunition casings were found at the crime scene.

Defendant was arrested on April 18, 2006, while he was apparently en route to Mexico. Loose rounds of nine-millimeter caliber ammunition and a nine-millimeter gun were in his car. The casings found at the crime scene were fired from the gun found in defendant’s car.

F. Defendant’s alibi.

Michelle Parnell, a close family friend of defendant’s, went to a birthday party on the evening of October 3, 2004 for defendant’s wife. Defendant was at the party and an after party the entire evening and early morning.

Maria Rios is also defendant’s friend. Defendant and his wife stayed with Rios at her home in Las Vegas from April 7 through April 10, 2006, when Ruben and Marcos were shot.

Defendant had lunch with Frank Campoi, a childhood friend, on April 17 or 18, 2006. Defendant bought what looked like a nine-millimeter gun from two men for $50.

II. Procedural background.

A. The jury’s verdict.

Trial was by jury. On March 2, 2007, the jury found defendant guilty of count 1, the attempted murder of Ruben (Pen. Code, §§ 187, subd. (a), 664, subd. (a)); count 6, the attempted murder of Wendy (§§ 187, subd. (a), 664, subd. (a)); count 7, criminal threats to Wendy (§ 422); count 8, the forcible rape of Wendy (§ 261, subd. (a)(2)); count 10, unlawful sexual intercourse with Wendy (§ 261.5, subd. (d)); and count 13, unlawful sexual intercourse with Wendy (§ 261.5, subd. (c)).

All further undesignated statutory references are to the Penal Code.

The counts were renumbered when submitted to the jury.

The jury found true the following allegations. Count 1: The attempted murder was committed willfully, deliberately and with premeditation (§ 664, subd. (a)); defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)); and gun use (§ 12022.53, subds. (b), (c), (d)). Count 6: Gun use (§ 12022.53, subd. (b)) and great bodily injury (§ 12022.7, subd. (e)). Count 7: Personal gun use (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)).

The jury found defendant not guilty of count 2, the attempted murder of Marcos; of count 14, corporal injury to spouse/cohabitant/child’s parent (§ 273.5, subd. (a)); and of count 15, assault by means likely to produce great bodily injury upon Wendy (§ 245, subd. (a)(1)).

B. The sentence.

On April 19, 2007, the trial court sentenced defendant as follows. Count 1: life with a 7-year minimum parole period doubled under the Three Strikes law to 14 years based on a prior strike, plus 25 years for the gun enhancement (§ 12022.53, subd. (d)). Count 6: life with a 7-year minimum parole period doubled to 14 years, plus 10 years (§ 12022.53, subd. (b)), plus 5 years (§ 667, subd. (a)), plus three years (§ 12022.7, subd. (e)). Count 7: the midterm of two years doubled to four years, plus three years (§ 12022.5, subd. (a)). Count 8: six years doubled to 12 years. Count 12: eight months doubled to 16 months. Count 13: eight months doubled to 16 months. Sentence on the remaining enhancements in counts 1 and 6 and on count 10 were stayed.

Defendant pled guilty to count 12, felon in possession of a gun.

DISCUSSION

I. Any failure to provide the jury with the written version of CALJIC No. 8.66 resulted in harmless error.

The trial court orally instructed the jury with CALJIC No. 8.66 on attempted murder. The clerk’s transcript does not, however, contain a written copy of CALJIC No. 8.66. Defendant therefore contends that his Sixth Amendment and due process rights were violated and reversal of his convictions for the two counts of attempted murder must be reversed.

A. The instructions.

The trial court orally instructed the jury on attempted murder: “ ‘Attempted murder[.] Defendant is accused in counts 1, 2, and 3 of having committed the crime of attempted murder in violation of sections 664/187 of the Penal Code. Every person who attempt[ed] to murder another human being is guilty of the violation of Penal Code sections 664/187. [¶] Murder is the unlawful killing of a human being with malice aforethought. In order to prove attempted murder, each of the following elements must be proved: [¶] A direct but ineffectual act was done by one person towards killing another human being, and the person committing the act harbored expressed [sic] malice aforethought, namely, a specific intent to kill unlawfully another human being.’ ” “ ‘In deciding whether or not such an act was done, it is necessary to distinguish between mere preparation on the one hand and actual commencement of the doing of the criminal deed on the other. [¶] Mere preparation which may consist of planning the killing or devising, obtaining, or arranging the means for its commission, is not sufficient to constitute an attempt; however, acts of a person who intends to kill another person will constitute an attempt where those acts clearly indicate a certain unambiguous intent to kill. [¶] The acts must be an immediate step in the present execution of the killing, the progress of which would be completed unless interrupted by some circumstances not intended in the original design.’ ”

The court interrupted its reading of the instruction at this point to have a sidebar with counsel to discuss whether to instruct on malice aforethought.

Jurors began deliberating at 11:05 a.m. on March 1, 2007. The next morning, the jurors asked: “Penal Code section[s] 664/187, where is 187(a)?... We cannot locate this in the instructions, unless it is subdivision (a). The way the count reads... is violation of 664/187(a), do we look at both together or separate? And if we look at both together, we need 187(a).”

The trial court responded: “The short answer to this is that the instruction on attempted murder, that is the instruction. 664 and 187 is like one number. There is no 187. You’re not missing any instructions. So rather than focusing on the numbers, focus on the instructions that relate to the crime. [¶] Does that make sense?”

“Juror No. 3: Do we look at subdivision (a) as part of that?

“The court: I don’t want a long discussion with you. If you’re going to ask me another question, you will write it down and – but I’ll tell you actually in the, I believe, it’s 8.66, that’s the instruction for attempted murder, and that’s the instruction that you should look at.... It is 8.66, that’s the instruction. That’s the one you look at. That’s the one that applies to 664/187. So that’s the answer.

“Juror No. 3: Okay.”

The jury resumed deliberations. It asked other questions, but none concerned attempted murder.

B. Any error was harmless.

Defendant contends that the jurors, first, were not given the written CALJIC No. 8.66, and, second, that the error requires reversal of his conviction for the attempted murders of Wendy and Ruben.

The People respond to the first point by arguing that although CALJIC No. 8.66 is indeed not in the superior court file (a fact we have independently verified by reviewing that file), the record nonetheless shows that the jury did get the written version of that instruction. The People point out that the trial court told the jury to refer to CALJIC No. 8.66 in response to the jury’s question. The jury did not thereafter come back and tell the court it could not find CALJIC No. 8.66. As well-taken as this point may be, given the state of the record, we cannot say one way or the other whether the jury had CALJIC No. 8.66 in writing. We must therefore consider defendant’s second issue, whether any error was harmless.

In a similar situation in which the trial court read CALJIC Nos. 2.02 and 2.03 to the jury but omitted them from the written set provided to the jury, our California Supreme Court said: “Although providing written instructions is ‘generally beneficial and to be encouraged,’ defendant has no federal or state constitutional right to instructions in writing [citation], and the statutory right [to written instructions] depends on an express request. (§ 1093, subd. (f).) Furthermore, defendant has not shown it is reasonably probable that the jury would have reached a result more favorable to defendant had it received a written copy of [the instructions]. [Citations.]” (People v. Ochoa (2001) 26 Cal.4th 398, 447, disapproved on another point in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14; Neder v. United States (1999) 527 U.S. 1, 8-9 [only a limited class of cases constitute structural error; an instruction that omits an element of the offense is not a structural error, rather it is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18].)

It is similarly not reasonably probable that the jury here would have reached a result more favorable to defendant on the attempted murder counts had they received the written instruction. If the jury asked a pointed question stating a need for instruction on attempted murder, then that would certainly be troubling. But it is not clear that is what happened here. The jury ambiguously asked: “Penal Code section[s] 664/187, where is 187(a)?... We cannot locate this in the instructions, unless it is subdivision (a). The way the count reads... is violation of 664/187(a), do we look at both together or separate? And if we look at both together, we need 187(a).” When considered with the attempted murder verdict forms, the jury’s question is not necessarily a request for clarification on the elements of attempted murder. The attempted murder verdict form reads: “We, the jury in the above-entitled action find the defendant, Christian De La Vega, GUILTY, of the crime of attempted murder of Wendy B., in violation of Penal Code section 664/187(a) , a [f]elony, as charged in Count 3 of the Information. [¶] We further find the allegation pursuant to Penal Code [s]ection 664(a), that the aforesaid attempted murder was committed willfully, deliberately and with premeditation, by said defendant, Christian De La Vega, to be true.” (Italics added, bold in original omitted.) Based on the verdict form and the form of the jury’s question, the jury’s question might have been a simple inquiry into whether they needed a Penal Code section, and not a request for clarification on the elements of attempted murder.

The trial court’s response to the jury’s question therefore did not compound any error, as defendant argues. The court twice told the jury that the only instruction it needed regarding attempted murder was CALJIC No. 8.66. That response, regardless of whether CALJIC No. 8.66 was in the written instructions, was proper. The jury, however, did not thereafter request further clarification on the elements of attempted murder or indicate it did not have the written instruction. This suggests that they either had the instruction or were not confused.

In any event, the jury did receive adequate instruction on the elements of attempted murder, namely, a direct but ineffectual act to kill another human being and the specific intent to kill. (§ 21a.) As we have said, the trial court read the instruction to the jury. The jury was also instructed, orally and in writing, with CALJIC No. 8.67, which instructs the jury on willful, deliberate and premeditated attempted murder under section 664. That instruction provides, in part: “To constitute willful, deliberate, and premeditated attempted murder, the would-be slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decides to kill and makes a direct but ineffectual act to kill another human being.”

The prosecutor also went over the elements of attempted murder in his closing: “The elements of attempted murder are... [t]he defendant took at least one direct but ineffective step towards killing another person. In other words, the person didn’t die.... It doesn’t mean that it was ineffective and nothing happened, but it means the person didn’t die. [¶] The defendant took at least one indirect but ineffective step toward killing another person and two, the defendant intended to kill that person. In other words, he has to have the specific intent to commit that act.” He later repeated the elements of the crime: “Attempted murder, the defendant took at least one direct but ineffective step toward killing another person, and two, the defendant intended to kill that person. That’s enough. There is enough evidence right there with that instruction for the attempted murder of Ruben [B.]”

There was also strong evidence that defendant attempted to kill Wendy and Ruben. As we discuss in greater detail below, Wendy testified that defendant forced her into a van, beat her, threatened to kill her, and then forced her to jump from a moving van at gunpoint. Paramedics testified that they responded to the scene, where they found Wendy, who had injuries consistent with jumping from a moving vehicle. Defendant had an alibi for that night—he was at his wife’s birthday party—but the jury was entitled to, and clearly did, disbelieve that alibi story.

As to the attempted murder of Ruben, he and his friend, Marcos, testified that defendant was there the night they were shot. Ruben, who was shot seven times, and Marcos both identified him as the shooter from photographic six-packs. Defendant had a motive to shoot up the house; Wendy had left him. Wendy also testified that defendant had previously threatened to shoot up her house. Casings found at the crime scene were fired from a gun found in defendant’s car.

That the jury found defendant not guilty of the attempted murder of Marcos does not alter our conclusion about the nonprejudicial nature of any error. The jury could have believed that defendant only intended to kill Ruben, because he was Wendy’s brother. Indeed, the prosecutor conceded that Marcos was not the target of the shooting. Also, Marcos was shot once in the leg, in contrast to Ruben who was shot seven times. This fact would buttress the belief that defendant intended to kill only Ruben.

Based on this evidence, any error involving a failure to give the written version of CALJIC No. 8.66 to the jury was harmless.

II. There is sufficient evidence to support defendant’s conviction of the attempted murder of Wendy B.

Defendant was found guilty of the attempted murder of Wendy. He contends on appeal that there is insufficient evidence of (a) his intent to kill Wendy and (b) of premeditation. We disagree.

A. Intent to kill.

“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one. ‘ “The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” ’ (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see Jackson v. Virginia (1979) 443 U.S. 307, 319.) [¶] ‘ “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]”....’ ” (People v. Smith (2005) 37 Cal.4th 733, 738-739.)

“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) To be guilty of attempted murder, a defendant must harbor express malice toward the victim or victims. (People v. Smith, supra, 37 Cal.4th at p. 739.) “ ‘There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions. [Citation.] ” (Id. at p. 741.) “One who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he shoots. Absent such direct evidence, the intent obviously must be derived from all the circumstances of the attempt, including the putative killer’s actions and words.” (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.)

Defendant contends there is insufficient evidence showing he intended to kill Wendy. He argues: Forcing Wendy to jump from a moving van rather than shooting her shows he was in a jealous rage, not a murderous one. This argument is singularly unpersuasive. Courts have found that engaging in conduct that could have but did not inflict a mortal wound supports an inference of an intent to kill. (See, e.g., People v. Smith, supra, 37 Cal.4th at p. 741; People v. Lashley, supra, 1 Cal.App.4th at p. 945 [an unsuccessful killing is not conclusive evidence of lack of intent to kill].) Defendant violently beat Wendy before he forced her out of the moving van. He threatened to kill her if she did not admit she was cheating on him. When Wendy refused to make such an admission, defendant forced her to jump from a vehicle moving, Wendy estimated, at 40 to 50 miles per hour. Defendant tries to minimize the import of forcing Wendy to jump from a moving vehicle at gunpoint by implying that he could have just shot her if he intended to kill her. That is true. It is also true (or at least the jury was entitled to believe) that jumping from a moving vehicle could have resulted in Wendy’s death. Defendant’s intent to kill is therefore in no way mitigated by Wendy “choosing” possible death by jumping out of the van over possible death by a gun.

B. Willful, deliberate and premeditated attempted murder.

“Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation.... Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.]” (People v. Perez (1992) 2 Cal.4th 1117, 1124.)

Attempted murder requires express malice, and, on appeal, we do not distinguish between attempted murder and completed first degree murder to determine whether there is sufficient evidence to support the finding of premeditation and deliberation. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8.) Malice is express when “there is manifested a deliberate intention unlawfully” to kill a person. (§ 188.) “ ‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.] ‘The process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....” [Citations.]’ [Citation.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) There are three basic, but not exhaustive, categories of evidence that will sustain a finding of premeditation and deliberation: (1) planning activity; (2) motive; and (3) manner of the killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27; see also People v. Perez, supra, 2 Cal.4th at p. 1125.) All factors need not be present to sustain a finding of premeditation and deliberation. (People v. Pride (1992) 3 Cal.4th 195, 247.)

All three factors are present here. There was planning activity: Defendant forced Wendy into a van, beat her, and threatened to kill her. He carried a gun, which he also used to threaten her. He drove onto a freeway, and he then forced her to jump out of the van. There was motive: Defendant and Wendy were in an abusive relationship in which defendant had previously beat her. On the night he tried to kill her, defendant accused Wendy of cheating on him. He told Wendy he would kill her if she didn’t admit to cheating on him. She did not admit she was cheating, and he forced her to jump out of the moving van. The manner of attempted killing shows premeditation: Defendant pointed a gun at Wendy and told her that if she didn’t jump from the van he would shoot her. At the time, they were on the freeway travelling at 40 to 50 miles per hour. This evidence is sufficient to support the jury’s finding that the attempted murder was premeditated, willful and deliberate.

III. Substantial evidence supports the trial court’s decision not to stay the sentence on count 7 for criminal threats.

The jury found defendant guilty of attempting to murder Wendy (count 6) and of a criminal threat (count 7). Both counts arose from the events of October 3, 2004, when defendant threatened to kill Wendy and forced her at gunpoint to jump from a moving van. Defendant contends that the punishment on count 7 for criminal threats should have been stayed under section 654, because the threats and attempted murder happened at the same time and during the same course of conduct.

Section 654, subdivision (a), provides in pertinent part: “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.” “Section 654 therefore ‘ “precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. ‘Whether a course of criminal conduct is divisible... depends on the intent and objective of the actor.’ [Citations.] ‘[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]” [Citation.]’ ” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).) However, if the defendant harbored multiple or simultaneous objectives, independent of and not merely incidental to each other, he or she “ ‘may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’ [Citations.]” (Ibid.) “Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” (Jones, supra, at p. 1143.)

There is substantial evidence to support the trial court’s finding that defendant’s criminal threats were a separate and distinct offense from his attempted murder of Wendy. “[T]he fact certain acts are proximate in time is not determinat[ive] in finding an indivisible course of conduct. Multiple criminal objectives may divide those acts occurring closely together in time.” (People v. Bradley (1993) 15 Cal.App.4th 1144, 1157, disapproved on another point in People v. Rayford (1994) 9 Cal.4th 1.) As argued by the prosecutor, the criminal threats count alluded to defendant forcing Wendy into the van on the night of October 3, 2004. He then drove her to a park and got a gun out of the back of the van. He told her that if she didn’t admit she was cheating on him, he would kill her and blow the van up with her body in it. Defendant then forced Wendy back into the van and eventually forced her to jump out of it, all the while threatening to kill her if she didn’t admit to cheating on him. The initial threat at the park to blow up the van with Wendy’s body in it if she did not admit to cheating on him could be viewed as divisible from the subsequent act of forcing Wendy to jump out of the van. In making the initial threat, defendant intended to frighten Wendy into making an admission. Later, and although defendant continued to demand Wendy admit she was cheating on him, defendant intended to kill Wendy because he forced her out of the moving vehicle.

In choosing consecutive sentences on all counts, the court said generally: “Now, the reason the court is choosing to sentence consecutively is because the Three Strikes law mandates this result, first of all, and also, based on the California Rules of Court, it mandates that, unless the crimes are committed on the same occasion or out of the same operative facts – we did on the one case where there was a rape and a sexual intercourse with a minor. We did not do it on that one, but all of the other crimes in this matter occurred on separate occasions and involve separate times. [¶] In addition, under Rule 4.425, consecutive sentencing would be required in any event because the crimes in this case – their objectives were predominately independent of each other. The crimes, for the most part, except for one or two of the sex crimes, involve separate acts of violence and they were committed, again, at different times at separate places. And for that reason, it would favor consecutive sentencing.”

Defendant thus committed multiple and divisible acts with distinct objectives; section 654 was therefore not violated.

IV. The abstract of judgment must be corrected to reflect the sentence actually imposed under section 12022.5, subdivision (a).

On count 7 for criminal threats, the trial court imposed a three-year term for the gun use enhancement under section 12022.5, subdivision (a). The abstract of judgment, however, incorrectly reflects a four-year term. The abstract of judgment must be corrected to reflect the three-year term actually imposed.

DISPOSITION

The abstract of judgment is ordered to reflect that the sentence imposed on count 7 for criminal threats included a three-year term for the gun use enhancement under section 12022.5, subdivision (a). The clerk of the superior court is directed to correct the abstract of judgment and to forward the corrected abstract of judgment to the Department of Corrections. The judgment is affirmed as modified.

We concur: KLEIN, P.J., CROSKEY, J.


Summaries of

People v. Vega

California Court of Appeals, Second District, Third Division
Apr 14, 2009
No. B198713 (Cal. Ct. App. Apr. 14, 2009)
Case details for

People v. Vega

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN DE LA VEGA, Defendant…

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

Date published: Apr 14, 2009

Citations

No. B198713 (Cal. Ct. App. Apr. 14, 2009)