Opinion
D057011 Super. Ct. No. SCE286270
10-11-2011
THE PEOPLE, Plaintiff and Respondent, v. TODD WIMLER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed as modified.
Todd Wimler appeals from a judgment convicting him of attempted murder, corporal injury to a former cohabitant, and other offenses. He argues the trial court was required to stay the sentence for the corporal injury count under Penal Code section 654.We reject this contention. Wimler also asserts the trial court imposed an unauthorized administrative screening fee and an excessive probation revocation restitution fine. The Attorney General concedes these errors, and we agree. Accordingly, we modify the judgment to correct the errors concerning the fee and fine, and as so modified, affirm the judgment.
Subsequent unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2007, Wimler and victim Deborah Carr were involved in a romantic relationship and lived together for several months. After an incident of domestic violence, their relationship ended in January 2008. In September 2008, they started communicating again and maintained a friendly, and sometimes sexual, relationship.
The charged offenses occurred on December 6, 2008, when Wimler struck Carr with a metal pipe and then set her legs on fire. At trial, the events surrounding the incident were described by Carr, neighbors who came to her rescue, and the responding authorities.
On the night of December 6, Carr went to see Wimler at his trailer. While they were inside the trailer, Wimler told Carr he was drunk and she was not "going anywhere." Wimler was blocking the door to the trailer, and he swung a metal pipe at Carr. As Carr tried to block the attack, Wimler hit her face, head, and abdominal area with the pipe.At some point Carr fell to the floor.
At trial, Carr could not recall what occurred to precipitate the attack, and she was not sure whether she was actually hit with the metal pipe. As we shall delineate below, the observations of other witnesses, including her treating physician, support that she was hit with the pipe.
While she was on the floor, Carr saw Wimler go outside the trailer and then return with a container of liquid. Wimler squirted the liquid on Carr's legs and lit her legs on fire. Wimler also started a fire on the floor about two feet away from Carr, and continued to throw things on the fire to keep it going. Carr was able to roll around and quickly extinguish the fire on her legs.
Wimler's neighbor (Michael Foster) heard Carr yelling for help and went over to the trailer. While outside the trailer, Foster heard Wimler say, " 'You like that? Does that feel good?' " and heard someone say, " 'No. Stop.' " Foster smelled smoke, and called out to defendant, asking if "everything [was] okay." Foster heard Carr say, " 'Please help me. He's trying to kill me.' " Foster saw flames through the trailer window, and he approached the trailer door and asked what was "going on." Wimler responded, " 'Shut up. Go away. This is none of your business. Get out of here.' " Foster yelled at Wimler that his trailer was on fire and that he had to get out. Wimler continued to yell at Foster to go away and that it was none of his business, while Carr yelled for help and said she could not move and he was trying to kill her.
Foster tried to open the door of the trailer, but Wimler held it closed and attempted to lock it. Foster pulled hard on the door and was able to open it. Carr was on the floor surrounded by flames. Foster, who was trained as a medic and had experience with rescue operations, grabbed Carr by the waist, dragged her to the door, and carried her out. When Foster returned to the trailer, defendant was standing inside the trailer by the doorway; Foster grabbed him and yanked him out. Foster called 911, while Foster's wife carried Carr to a location further away from the trailer.
When the authorities arrived, the trailer was engulfed in flames. Carr was lying on the ground about 75 feet away from the trailer. Her face looked "[r]eally battered" and bruised; her hands were "very red" and swollen; she had burns on her back and legs; and she was "writhing in pain" and moaning. She told a deputy sheriff that Wimler "lit the pilot," "beat her up," and "tried to kill her." Wimler fled the scene, but shortly thereafter the authorities found him several feet down a dirt embankment and took him into custody.
Carr testified that as a result of the attack she was in an induced coma for six weeks; her legs were "all burned"; she had major head injuries; and injuries to her ribs and spleen. She stated she had a "big hole" in the back of her head which required her to "carry around a vacuum so they could try to suck the hole back out." The surgeon who treated Carr testified that she had what appeared to be blunt force trauma injuries to her face, the back of her head, and her chest and abdominal area. On her face, she had tissue contusions and eye and cheek swelling, which appeared to have been caused by an object or fist striking her in the face. On the back of her head, she had lacerations which were treated with sutures and a "wound vac" to promote tissue growth. Her head injuries could cause her to suffer memory loss. She had bruising on the side of her lower chest and abdomen, a rib fracture, and a mid-size laceration to her spleen. In addition to the blunt force injuries, she incurred deep, second or third degree burns on her thighs, the back of her legs, and the side of her lower back. The burns required surgical excision and two-stage skin grafting.
She also had possible superficial burns on her cheeks.
Jury Verdict and Sentence
Wimler was charged with (1) attempted premeditated murder; (2) false imprisonment by violence or menace; (3) corporal injury to a former cohabitant; (4) aggravated mayhem; and (5) arson causing great bodily injury. The information also included several enhancement allegations, including (1) personal infliction of great bodily injury for the attempted murder, false imprisonment, and corporal injury counts; (2) personal use of a deadly weapon (an accelerant) for the attempted murder and aggravated mayhem counts; and (3) personal use of a deadly weapon (a metal pipe) for the false imprisonment and corporal injury counts. The jury found Wimler guilty as charged.
There were additional enhancement allegations of a prior domestic violence conviction for the corporal injury count and use of an accelerating device for the arson count.
Wimler received a total sentence of life with the possibility of parole, plus a determinate term of 17 years. His sentence consisted of consecutive terms for the attempted murder and corporal injury counts. He was sentenced to: (1) life with the possibility of parole for the attempted murder offense, plus five years for the great bodily injury allegation and one year for the deadly weapon (accelerant) allegation for this count; and (2) five years for the corporal injury offense, plus five years for the great bodily injury allegation and one year for the deadly weapon (metal pipe) allegation for this count. The trial court stayed the sentences under section 654 for the remaining counts.
DISCUSSION
A. No Section 654 Violation
Section 654, subdivision (a) prohibits multiple punishment for a single act or indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) When a defendant is convicted of two offenses that are part of an indivisible course of conduct, the sentence for one of the offenses must be stayed. (Id. at pp. 591-592.) The purpose of section 654 is to ensure that a defendant's punishment is commensurate with his or her culpability. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252.)
Whether a course of criminal conduct is divisible so as to allow multiple punishment under section 654 depends on whether the defendant had a separate objective for each offense. (People v. Britt (2004) 32 Cal.4th 944, 951-952.) "If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once." (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.) In contrast, if the defendant "had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct." (Ibid.)
When there is a temporal or spatial separation between offenses, giving the defendant time to reflect and renew his or her intent, the defendant's decision to continue a course of criminal conduct supports a finding that the defendant entertained multiple criminal objectives. (People v. Kwok, supra, 63 Cal.App.4th at pp. 1253-1257; People v. Surdi (1995) 35 Cal.App.4th 685, 689; People v. Andra (2007) 156 Cal.App.4th 638, 640.) This time-for-reflection principle may apply even when the multiple crimes share the same objective. (People v. Kwok, supra, 63 Cal.App.4th at pp. 1253-1257; see People v. Britt, supra, 32 Cal.4th at p. 952 [multiple punishment permitted for consecutive, even if similar, objectives].) Further, an offense may "at some point . . . become so extreme [that the offense] can no longer be termed 'incidental' and must be considered to express a different and a more sinister goal than mere successful commission" of the other offense. (People v. Nguyen (1988) 204 Cal.App.3d 181, 191; People v. Saffle (1992) 4 Cal.App.4th 434, 439-440.)
On appeal we apply the substantial evidence standard to review the court's finding that the defendant had separate objectives. (People v. Andra, supra, 156 Cal.App.4th at p. 640.) We view the evidence in the light most favorable to the court's determination, and presume in support of the court's conclusion the existence of every fact that could reasonably be deduced from the evidence. (Id. at pp. 640-641.)
When selecting consecutive sentences for the attempted murder and corporal injury counts, the trial court found the use of the accelerant was distinct from the beating with the metal pipe. The court noted the accelerant was at a different location, and found defendant had time to reflect between his use of the two deadly weapons. Wimler argues the trial court was required to stay his sentence for the corporal injury count because it involved the same objective as the attempted murder count; i.e., the intent to kill the victim. The contention is unavailing.
The record supports that Wimler first beat Carr with the metal pipe, and then went out of the trailer, retrieved an accelerant, went back into the trailer, and set Carr on fire. Based on this evidence, the trial court reasonably concluded that Wimler, after beating Carr with the pipe, had time for reflection and that he renewed his criminal intent when he went outside and got the accelerant. Further, Wimler's conduct of setting Carr on fire readily falls into a category of conduct that is so extreme as to evince an objective distinct from his previous conduct of beating her with the pipe. When Wimler decided to escalate the attack by setting Carr on fire, he committed a horrific act distinct from the beating, which ultimately caused additional suffering by requiring Carr to undergo extensive skin grafting procedures. Even if Wimler had a common overall objective of killing Carr, the record supports the court's finding of multiple objectives during the corporal injury offense committed with the pipe, followed by the attempted murder offense committed with the accelerant.
Wimler argues that because the trial court stayed the sentence on the false imprisonment offense, it was also required to stay the sentence on the corporal injury offense because these two offenses involved the same conduct with the metal pipe. The trial court may have stayed the sentence on the false imprisonment offense because it viewed this offense as incidental to the corporal injury offense. This did not necessarily make the corporal injury offense incidental to the attempted murder offense. As stated, the record supports a finding of multiple objectives for defendant's acts of beating the victim with a pipe and then setting her on fire.
B. Administrative Screening Fee and Probation Revocation Fine
1. Administrative Screening Fee
The trial court ordered that Wimler pay an administrative screening fee under section 1463.07. Under section 1463.07, this fee is authorized upon conviction when the defendant was released on his or her own recognizance. The record shows defendant was not released but held subject to bail. The Attorney General concedes the fee should not have been imposed, and we agree. Accordingly, we modify the judgment to strike the administrative screening fee.
2. Probation Revocation Restitution Fine
Section 1202.4, subdivision (b)(1) requires imposition of a restitution fine when a defendant is convicted of a felony, with the fine set at a minimum of $200 and a maximum of $10,000. When the defendant is granted probation, section 1202.44 mandates assessment of a probation revocation restitution fine in the same amount as the section 1202.4 restitution fine. The revocation fine becomes effective if probation is revoked.
The restitution fine and probation revocation restitution fine must be imposed unless the court finds compelling and extraordinary reasons for not doing so. (§§ 1202.4, subd. (b), 1202.44.) Similarly, when the defendant receives a sentence with a parole period, section 1202.45 requires a parole revocation restitution fine in the same amount as the section 1202.4 restitution fine, which revocation fine is suspended unless parole is revoked.
When defendant committed the current offense, he was on probation for a previous offense. At sentencing for the previous offense, the trial court imposed a $200 restitution fine as required by section 1202.4, subdivision (b)(1). Accordingly, the probation revocation restitution fine for the previous offense necessarily was $200.
Defendant's probation for the previous offense was revoked after he committed the current offense. At sentencing for the current offense, the trial court imposed a $10,000 probation revocation restitution fine under section 1202.44 based on the revocation of his probation for the previous offense.
The probation report recommended a $10,000 restitution fine (applicable to the current offense), a matching (suspended) $10,000 parole revocation restitution fine under section 1202.45 (applicable to the current offense), and a $10,000 probation revocation restitution fine under section 1202.44 (applicable to the previous offense). In its oral statement at sentencing, the trial court failed to include the $10,000 parole revocation restitution fine required under section 1202.45; however, this fine was correctly included in the minute order and in the abstract of judgment.
Defendant argues the section 1202.44 probation revocation restitution fine for the previous offense must be $200, to match the $200 restitution fine ordered at sentencing for the previous offense. The Attorney General concedes this error, and we agree. (People v. Perez (2011) 195 Cal.App.4th 801, 805.) Accordingly, we modify the judgment to reduce the probation revocation restitution fine under section 1202.44 from $10,000 to $200.
In its briefing on appeal, the Attorney General at times mistakenly refers to the section 1202.44 probation revocation restitution fine challenged by defendant as a section 1202.45 parole revocation restitution fine. Because it is apparent the Attorney General is conceding error based on Wimler's challenge to the section 1202.44 probation revocation restitution fine, we construe its reference to the section 1202.45 fine as intended to be a reference to the section 1202.44 fine.
We note that the abstract of judgment does not reference the probation revocation restitution fine. We order that the abstract be amended to reflect this fine.
DISPOSITION
The judgment is modified to (1) strike the administrative screening fee, and (2) reduce the section 1202.44 probation revocation restitution fine from $10,000 to $200. As so modified, the judgment is affirmed. The superior court is instructed to amend the abstract of judgment to include the $200 probation revocation restitution fine under section 1202.44. The court shall forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
The abstract should also include the $10,000 parole revocation restitution fine under section 1202.45.
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HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
BENKE, J.