Opinion
D068420
01-09-2017
THE PEOPLE, Plaintiff and Respondent, v. ARNOLD LARA ZUNIGA, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Kristen Ramirez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF34025) APPEAL from a judgment of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed, as modified. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted Arnold Lara Zuniga of assault with a firearm (Pen. Code, § 245, subd. (a)(2); count 2), carjacking (§ 215, subd. (a); count 3), robbery (§ 211; count 4), making a criminal threat (§ 422, subd. (a); count 5), and unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a); count 6). As to counts 2, 5, and 6, the jury found Zuniga personally used a firearm (§ 12022.5, subd. (a)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). As to counts 3 and 4, the jury found Zuniga had personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally and intentionally discharged a firearm proximately causing great bodily injury (§ 12022.53, subd (d)). The trial court additionally found Zuniga had a prior prison commitment conviction (§ 667.5, subd. (b)). The court stayed the sentences for counts 4 and 6 and some of the conduct enhancement findings, and it sentenced Zuniga to a total prison term of 39 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury was unable to reach a verdict on a charge of attempted murder (§§ 187, subd. (a), 664, subd. (a); count 1). The court declared a mistrial as to the charge and later dismissed it at the prosecutor's request. --------
Zuniga appeals, contending the court erred by failing to stay the sentences for counts 2 and 5 under section 654. He alternatively contends the abstract of judgment contains a clerical error with respect to enhancement sentences for count 2. The People concede the second contention, with which we also agree. We, therefore, order the court to amend the abstract of judgment to reflect the correct enhancement sentences for count 2. In all other respects, we affirm the judgment.
II
BACKGROUND
A
Zuniga went to a house located on a ranch where he had previously been employed. The victim, an inhabitant of the house and a seasonal employee of the ranch, was outside when Zuniga arrived. The victim recognized Zuniga because they had worked together in the past. Zuniga asked to borrow $20 from the victim, but the victim replied he did not have any money because he had not yet been paid. Zuniga stated he did not believe the victim and then went into the house to look for the victim's roommate, another ranch employee. Zuniga asked the roommate to loan him some money, but the roommate replied he also did not have any money because he had not been paid either. After a few minutes, Zuniga exited the house and stated he did not believe the two men had not been paid. He then left the property.
Approximately thirty minutes later, the victim was outside the house loading equipment into his car when he heard two "detonations." Zuniga walked toward him with a firearm in his hand and shot the victim's right knee.
As Zuniga approached, he asked the victim if he was going to "play dumb" about a cell phone Zuniga had sold to the victim's roommate. The victim who was still standing replied that the cell phone was not his problem; it was between Zuniga and the roommate. Zuniga then stated someone had stolen the cell phone and they were "not going to make a fool out of him." The victim repeated the issue was between Zuniga and the roommate, Zuniga replied he "was going to fuck up one of [them]" and the victim "was not going to live beyond that night." Zuniga then shot the victim a second time in the right thigh. The victim had two cell phones in his pants pocket which stopped the bullet from piercing his skin.
After the second shot, Zuniga asked the victim about the victim's roommate and then walked into the house to look for him. Zuniga was not able to find the roommate and exited the house about a minute later. Zuniga asked the victim to hand over his car keys, but then noticed the keys were already in the ignition. He got into the victim's car, remarked sarcastically he would bring it back later, and drove away.
That same night, police officers arrested Zuniga at a nearby mobile home park where his cousin lived. A few days later, the cousin noticed the victim's car was parked in a reserved spot at the mobile home park and called to have it towed. An investigator later located the car at the tow yard and confirmed it was the victim's car.
The victim spent two to three days in the hospital and had to undergo surgery on his right knee to remove debris from the first gunshot wound. The second gunshot left a large bruise on his right thigh. He missed a month of work while recovering.
B
At the sentencing hearing, the court stated, "[M]r. Zuniga, what you did here in this case is just simply totally uncalled for, gratuitous violence." It then sentenced Zuniga to a total prison term of 39 years to life, consisting of: the upper term of nine years for the carjacking offense plus 25 years to life for the firearm discharge enhancement; a consecutive term of one year for the assault with a firearm offense plus one year and four months for the firearm use enhancement and one year for the great bodily injury enhancement; a consecutive term of eight months for the making criminal threats offense; and a consecutive term of one year for the prior prison commitment conviction finding.
The court imposed but stayed the sentences under section 654 for counts 4 and 6, the enhancements for these counts, and some of the enhancements for counts 2 and 5. The court declined to stay the sentence for the assault with a firearm offense, finding "it was an independent and separate event, separate intent, separate conduct on the part of the defendant significantly and separated both in time and motivation from the carjacking." The court also declined to stay the sentence for the making a criminal threat offense under section 654, finding "the threat was a separate event, separate criminal intent."
III
DISCUSSION
A
Zuniga contends the court erred by failing to stay his sentences for the assault with a firearm and making a criminal threat offenses under section 654 because the acts underlying these offenses were part of a single, indivisible course of conduct. We disagree.
"Section 654 states in relevant 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.' [Citation.] ' "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." ' " (People v. Capistrano (2014) 59 Cal.4th 830, 885.) "[I]f all of 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.] [¶] If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory 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. Harrison (1989) 48 Cal.3d 321, 335; People v. Wynn (2010) 184 Cal.App.4th 1210, 1215.) "The question of 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. [Citation.] Its findings on this question must be upheld on appeal if there is any substantial evidence to support them." (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113.)
Here, there is substantial evidence to support the court's determination Zuniga harbored separate criminal intents for the assault and making a criminal threat offenses. The assault with a firearm offense occurred without any preamble or warning and, based on the chronology of events, the court could have reasonably inferred it was in retaliation for the victim's earlier refusal to loan Zuniga money. Zuniga's threatening remarks to the victim occurred directly after Zuniga made cryptic remarks about a stolen cell phone. Again, the court could have reasonably inferred Zuniga made the threats out of anger at the victim's denial of any knowledge about the cell phone, and not primarily to facilitate the subsequent robbery and carjacking. Indeed, Zuniga did not indicate he wanted to take the victim's car until after he had shot the victim without warning, argued with the victim about a cell phone, threatened the victim, shot the victim a second time, and searched the victim's house for the victim's roommate. Thus, there is substantial evidence Zuniga formed the independent intent to steal the victim's car as an afterthought separate from the assaults and criminal threats, and, therefore, the trial court's decision to impose multiple punishments does not violate section 654. (People v. Douglas (1995) 39 Cal.App.4th 1385, 1393 ["multiple punishment may be imposed where the defendant commits one offense with one intent, then, as an afterthought, forms the independent intent to commit a second offense"].)
B
Zuniga alternatively requests we order the correction of a clerical error in the abstract of judgment with respect to the enhancement sentences for count 2. Specifically, he argues while the abstract of judgment correctly reflects the aggregate sentence for the enhancements, it incorrectly shows the sentence for the firearm use enhancement as four months and the sentence for the great bodily injury enhancement as two years, when it should show one year for the firearm use enhancement and one year and four months for the great bodily injury enhancement. The People concede the error. "It is well settled that '[a]n abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize.' " (People v. Jones (2012) 54 Cal.4th 1, 89.) Thus, "[w]hen an abstract of judgment does not reflect the actual sentence imposed in the trial judge's verbal pronouncement, this court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties." (Ibid.) Since the abstract of judgment does not accurately reflect the court's oral judgment for the firearm and great bodily injury enhancements, we agree with the parties it must be corrected and we shall direct the trial court accordingly.
DISPOSITION
The trial court is directed to correct the abstract of judgment to show sentences of one year for the firearm use enhancement and one year and four months for the great bodily injury enhancement for count 2. The court is further directed to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
McCONNELL, P. J. WE CONCUR: NARES, J. AARON, J.