Opinion
E067712
08-30-2018
THE PEOPLE, Plaintiff and Respondent, v. OSCAR VEGAGARDUNO, Defendant and Appellant.
Cathryn Lintvedt Rosciam, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CR034013) OPINION APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson, Judge. Affirmed as modified. Cathryn Lintvedt Rosciam, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant, Oscar Vegagarduno, of elder adult abuse likely to produce great bodily harm (count 1; Pen. Code, § 368, subd. (b)(1)), assault by means likely to produce great bodily injury (count 2; § 245, subd. (a)(4)), and assault with a deadly weapon (count 3; § 245, subd. (a)(1)). The court sentenced defendant to a determinate term of two years of incarceration consisting of the low term of two years on the count 1 offense and concurrent terms on counts 2 and 3. On appeal, defendant contends the court erred by failing to stay the terms on counts 2 and 3 pursuant to section 654. The People agree imposition of sentence on one of the counts should be stayed, but not on both. The judgment is affirmed as modified.
All further statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL HISTORY
The victim, who was 80 years old on the date of the incident, testified that he lived on the same property as defendant. He and defendant would argue and threaten each other's lives daily. On the date of the incident, defendant wanted money from the victim.
A witness to the incident who also lived on the property testified approximately 16 people lived there.
The victim was walking in the driveway when defendant almost ran over the victim in defendant's car. The victim jumped out of the way. The victim then threatened defendant with his cane while defendant was still in his car; the victim felt the cane hit something, but believed it was defendant's car and not defendant himself.
The victim contradictorily testified at times that he did hit defendant with his cane.
Defendant parked his car, exited it, approached the victim, took the cane away from the victim, hit the victim with the cane, punched the victim in the face, pushed the victim, and then threw the cane at the victim. The victim sustained injuries requiring several stitches inside his mouth.
Defendant then threatened to kill the victim with defendant's car, which he started walking toward. The victim threatened to get a gun with which to kill defendant and began walking toward his trailer.
Defendant entered his car and started driving directly toward the victim. Defendant hit the victim with his vehicle, knocking the victim "hard on the ground," causing the victim's knee to bleed. The victim sustained injuries to his right shoulder and hip.
A witness testified he heard some scuffling outside; he recognized the voices of the victim and defendant. The witness came outside where he saw the victim on the ground with defendant standing over the victim striking him. The victim threatened to get a gun and went to the trailer in which he resided. Defendant got back into his car and backed up into the extreme furthest corner of the property.
The victim came out of his trailer and walked toward defendant's car. When the victim was within one to two car lengths, defendant drove forward in an aggressive manner, spinning his tires: Defendant "gave it gas and—and hit [the victim]. [The victim] went—flew up in the air, [the victim] landed on [defendant's] car, and then [defendant] hit—hit [the victim's] vehicle [with defendant's vehicle] . . . and then [the victim] fell off." The witness testified defendant could have driven off the property, but elected to drive toward the victim where defendant hit him. The witness was "really surprised that he didn't kill [the victim], and I'm surprised that [the victim] didn't end up in the hospital
Defendant then backed up his car, got out of the car, picked the victim up off the ground, and hit him in the mouth, bloodying the victim's face. The witness never saw the victim with a gun either on the day of the incident or any time before; he believed the victim was bluffing.
Defendant testified that while leaving the residence in his car, the victim approached and repeatedly hit defendant with the victim's cane on defendant's face and arm. Defendant stopped the car, got out, took away the cane, and hit the victim in the face, causing the victim to fall to the ground. The witness came running out and pushed defendant aside.
The victim got up, threatened to get a gun to kill defendant, and ran to his trailer. Defendant got back into his car; instead of leaving, he backed the car into a corner of the property because he "wanted to fix the problem that [the victim] had caused when [the victim] hit [him]." Defendant had seen the victim with a gun before; defendant testified the victim "always carries it in his jacket."
The victim came out of his trailer and walked toward defendant's car; defendant bumped the victim with his car "thinking that he had the gun." Defendant got out of his car and hit the victim with his fist.
During the People's closing argument, the People argued defendant committed the count 1 offense when he ran his car into the victim and when he got out of the car the second time and hit the victim in the face. The People argued defendant committed the count 2 offense when he hit the victim in the face after having run into him with the car. The People argued defendant committed the count 3 offense when he hit the victim with the car.
At sentencing, defense counsel requested the court to grant defendant probation. The People requested consecutive sentences on each count. The court observed: "I notice there are two separate acts of violence. They were within a short period of time on the same victim." The court indicated concurrent sentences were appropriate because "there was a relatively short distance of time between the two incidents. And perhaps the same motivation."
II. DISCUSSION
Defendant contends the court erred by failing to stay the terms on counts 2 and 3 pursuant to section 654. The People agree imposition of sentence on one of the counts should be stayed, but not on both. We agree with the People.
"Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single '"intent and objective"' or multiple intents and objectives. [Citations.] At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. [Citation.]" (People v. Corpening (2016) 2 Cal.5th 307, 311-312.)
"Generally, whether a course of conduct is a divisible transaction depends on the intent and objective of the actor: '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.' [Citation.]" (People v. Alvarez (2009) 178 Cal.App.4th 999, 1006.) "'[T]he purpose of section 654 "is to insure that a defendant's punishment will be commensurate with his culpability."' [Citation.] 'It is [the] defendant's intent and objective, not temporal proximity of his offenses, which determine whether the transaction is indivisible.' [Citation.] '"The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced."' [Citation.]" (People v. Capistrano (2014) 59 Cal.4th 830, 886, fn. omitted.)
Where separate offenses are separated by periods of time during which reflection is possible, section 654 does not mandate that imposition of punishment be stayed. (People v. Surdi (1995) 35 Cal.App.4th 685, 689-690 [multiple stabbing episodes over the course of an evening supported imposition of separate sentences on mayhem and kidnapping convictions]; People v. Harrison (1989) 48 Cal.3d 321, 335 [imposition of separate sentences upon the defendant's conviction of three counts of forcible sexual penetration appropriate where acts occurred over the course of 10 minutes, but were interrupted by breaks of sufficient duration to permit the defendant to harbor separate intents].) "The failure of defendant to object on this basis in the trial court does not forfeit the issue on appeal. [Citation.]" (People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.) Imposition of concurrent sentences on offenses for which the proscriptions of section 654 are applicable is error; where section 654 is applicable, punishment must be imposed and stayed. (People v. Jones (2012) 54 Cal.4th 350, 353.) "'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.)
Here, the People argued that only two separate acts supported conviction on the charged offenses: (1) defendant hitting the victim with the car; and (2) defendant punching the victim after getting out of the car. Thus, as conceded by the People, at least one of the assault charges must be stayed due to the People's election. (People v. Siko (1988) 45 Cal.3d 820, 825-826 [the People cannot posit an alternative factual basis at sentencing than the one which they argued at trial for purposes of the application of § 654]; People v. McCoy, supra, 208 Cal.App.4th at p. 1339 ["[W]here there is a basis for identifying the specific factual basis for a verdict," such as the prosecutor's closing argument, "a trial court cannot find otherwise in applying section 654," italics added].) We agree with the People.
It is notable here, however, that had the People not elected the two factual bases for conviction, the People could have argued, and the court could have found, that there were potentially four separate acts which could have provided the bases for each of the three assault charges: (1) defendant's initial, apparent attempt to run the victim over in the driveway; (2) defendant's assault upon the victim after first exiting the car; (3) defendant's striking the victim with his car; and (4) defendant's assault upon the victim after exiting the car a second time. Of course, the court would have been required to issue the unanimity instruction, which it did here (CALCRIM No. 3500), and the jury would have had to unanimously agree upon which acts constituted which offenses. The court would then have had to determine whether three of the acts were conducted with separate intents and objectives in order to have imposed, and not stayed, three separate consecutive or concurrent punishments.
Defendant contends imposition of punishment on both counts 2 and 3 should be stayed because they were part of an indivisible course of conduct which included the count 1 offense and which was conducted with a single intent and objection. We disagree. Here, the People argued the two factual bases for supporting the convictions on all counts were defendant's hitting of the victim with his car and later punching of the victim after exiting the car. The jury convicted the defendant on all three counts. The court found there were "two separate acts of violence. They were within a short period of time on the same victim." The court stated concurrent sentences were appropriate because "there was a relatively short distance of time between the two incidents. And perhaps the same motivation." "The Court, again, is concerned that a significant separate assault by the defendant of the victim [occurred]." "I think with respect to the [section] 245 [offense] and the [section] 368 [offense], those are the same. I think, [section] []654 actually would apply to those charges."
Unfortunately, both the 2 and 3 counts are section 245 offenses and the court failed to identify which count corresponded with the offense it determined was the same as the count 1 offense and to which section 654 would apply. --------
This would appear to read as an express finding that two, and only two, of the offenses constituted indivisible conduct with the same intent and objective. (People v. McCoy, supra, 208 Cal.App.4th at p. 1340 ["[A] trial court may base its decision under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts."].) Thus, the court found that section 654 would require imposition of and stay of one of the section 245 counts. However, the court did not stay punishment on either of the section 245 counts. Moreover, read in context with the court's entire exposition, it is apparent the court rendered an implied, if not express, finding that one of the section 245 offenses constituted divisible conduct with a separate intent and objective for which punishment should not be stayed. Substantial evidence supports such a determination.
After hitting the victim with his car and knocking him to the ground, defendant got back into his car, pulled it into reverse, parked the car again, exited the car again, walked toward the victim, picked him up off the ground, and hit him in the mouth, bloodying his face. The sequence of events presented defendant with a sufficient period of time between assaults during which reflection was possible, i.e., defendant stopped his assault of the victim, but started it again later, providing sufficient evidence for the court's implied finding that defendant's acts were not an indivisible course of conduct and that defendant had sufficient time to develop separate intents and objectives. Thus, as defendant himself acknowledges, case law exists which would support a finding that separate, successive intents to harm may be separately punished despite the dictates of section 654. (People v. Surdi, supra, 35 Cal.App.4th at pp. 689-690; People v. Trotter (1992) 7 Cal.App.4th 363, 368; People v. Harrison, supra, 48 Cal.3d at p. 335.)
Nonetheless, defendant exposits a line of cases which he contends are better reasoned and would compel a stay of imposition of punishment on both counts 2 and 3. (People v. McFarland (1962) 58 Cal.2d 748, 762 [the defendant could not be punished for both burglary and grand theft where he entered the hospital with the sole intent to commit theft]; People v. Logan (1953) 41 Cal.2d 279, 290 [the defendant could not be convicted of both assault and robbery for striking a woman with a baseball bat and taking her purse]; Neal v. State of California (1960) 55 Cal.2d 11, 15 [the defendant could not be punished for both arson and attempted murder where the arson was how the defendant achieved the attempted murder].) These cases are distinguishable. In each of them, the defendant necessarily committed one offense in his attempt to commit a second offense. In the present case, defendant committed two separate offenses, hitting the victim with his car and punching him in the face, neither of which required the commission of the other offense. Moreover, as noted above, defendant had sufficient time to reflect upon his actions after hitting defendant with his car, such that substantial evidence supports the court's determination that defendant manifested a separate intent in getting out of his car and punching defendant in the face. Because the count 3 offense was for hitting the victim with the car, we shall direct that the count 2 offense be stayed.
III. DISPOSITION
The judgment is hereby modified to reflect that the concurrent term imposed for the count 2 offense is stayed pursuant to section 654. The trial court is ordered to file an amended abstract of judgment and minute order reflecting this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. The modified judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: SLOUGH
J. FIELDS
J.