Opinion
B325499
10-10-2023
THE PEOPLE, Plaintiff and Respondent, v. ENZO ESCALANTE, Defendant and Appellant.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. PA091450 Hayden Zacky, Judge. Sentence vacated and remanded with directions.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Enzo Escalante appeals from a judgment entered after a jury found him guilty of one count of battery on a peace officer causing injury (Pen. Code, § 243, subd. (c)(2)) and one count of resisting the same officer (§ 69). The trial court sentenced him to the upper term of three years for the battery and a consecutive term of eight months (one-third the middle term) for resisting the officer.
Undesignated statutory references are to the Penal Code.
On appeal, Escalante challenges his sentence. He contends, the Attorney General concedes, and we agree that the trial court erred in not staying the sentence on one of the two counts under section 654 because the two offenses arose from the same act or were part of the same course of conduct, with the same objective, committed against the same victim. We further agree with the parties that the matter must be remanded for the trial court to determine which count to stay.
Escalante also contends the trial court violated section 1170, subdivision (b) in imposing an upper term sentence on the battery count because there was no circumstance in aggravation found true by the jury or stipulated to by Escalante. The Attorney General argues Escalante forfeited this challenge to his sentence by not objecting in the trial court. We need not decide this issue as we are vacating Escalante's sentence and remanding the matter for resentencing due to the section 654 error.
BACKGROUND
I. Evidence Presented at Trial Regarding the Incident
On June 19, 2018, the date of the incident at issue here, Escalante was incarcerated in a maximum security jail for a different criminal case. Los Angeles County Sheriff's Department Custody Assistant Treasure Andrade-Gonsalez observed Escalante approach a set of sliding doors in the dorm where he was housed. Inmates were not permitted to access those doors. It appeared to Andrade-Gonsalez that Escalante was attempting to communicate with someone through the sliding doors, which was a violation of jail rules. She ordered him to approach the bars separating the dorm from the staff station. He complied, and she asked for his booking number. He responded with profanity, refusing to provide the number. She told him that if he gave her his booking number, he would receive a loss of privileges for the rules violations; but if he continued to refuse to provide the number, he would be transferred from his dorm to disciplinary housing, and he should go gather his personal belongings for transfer. Using profanity, Escalante again told her he was not going to comply, and he walked away from the bars.
Andrade-Gonsalez informed Deputy Edwin Andrade about the situation. Andrade tried to get Escalante to cooperate. He explained to Escalante and other inmates that the Emergency Response Team (ERT) would be called in to forcibly remove Escalante unless he cooperated. Escalante made clear to Andrade, as well as other deputies and inmates who were asked to encourage him to cooperate, that he would not comply with the deputies' orders. In anticipation of the ERT's arrival, deputies ordered the inmates in Escalante's dorm to return to their bunks.
The ERT arrived in the dorm, wearing tactical gear, including chemical masks. Andrade led them to Escalante's bunk. A member of the ERT ordered Escalante to stand up, turn around, and place his hands behind his back. Escalante stood up and placed his left hand behind his back. Sergeant Reuben Acosta of the ERT grabbed Escalante's left wrist and reached for his handcuffs. Escalante turned toward Acosta and punched him in the face, knocking Acosta's chemical mask askew and disorienting him. According to Andrade's trial testimony, Escalante punched Acosta "in the face and the upper torso various times," but Acosta only testified about one blow to his face.
Deputy Andrade deployed his taser, and the prongs hit both Escalante and Acosta, causing them to fall to the ground. Andrade observed Escalante's arms and legs moving aggressively into and away from his torso as if he was trying to stand up. Andrade and members of the ERT ordered Escalante to stop resisting. Escalante's arms and legs continued to move, so Andrade "dry stunned" him by placing the taser on his thigh. Thereafter, Escalante was handcuffed and escorted out of the dorm.
Acosta testified at trial that the blow from Escalante "busted" his lip and cracked his tooth. Part of the tooth "chipped off." He believed if he had not been wearing the chemical mask, the force of the blow would have "knocked [him] out."
II. Verdicts and Sentencing
The jury found Escalante guilty of battery on a peace officer causing injury in violation of section 243, subdivision (c)(2) and resisting an executive officer in violation of section 69. At the sentencing hearing on November 8, 2022, the trial court sentenced Escalante to three years and eight months in prison: the upper term of three years for the battery count, plus a consecutive term of eight months (one-third the middle term of two years) for resisting the officer. The court did not state any reasons for its sentencing choices or cite any circumstance in aggravation supporting imposition of an upper term sentence. Nor did the court reference section 654. Defense counsel raised no objection to the sentence.
With credit for time served, the trial court stated Escalante was "released" on parole, but the court noted that Escalante was serving a sentence of life without the possibility of parole on another case. Escalante's direct appeal in that other case is currently pending in another division of this appellate district.
DISCUSSION
Escalante contends the trial court violated section 654 when it punished him for both battery on a peace officer causing injury and resisting the same officer. The Attorney General concedes the error.
The Attorney General does not argue Escalante forfeited this contention by not raising it below, as the forfeiture doctrine does not apply to error under section 654. (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3 ["Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court"]; People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17 ["the court acts in 'excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654," and a contention of section 654 error may be addressed "on the merits even though the issue was not raised below"].)
Under section 654, subdivision (a), "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." Thus, "If a single action or course of conduct by a defendant violates multiple laws, 'the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, [but] the trial court may impose sentence for only one offense.'" (People v. Sek (2022) 74 Cal.App.5th 657, 673.) "The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one." (People v. Bauer (1969) 1 Cal.3d 368, 376; People v. Martin (2005) 133 Cal.App.4th 776, 781.) The "question of whether defendant harbored a 'single intent' [or objective] within the meaning of section 654 is generally a factual one, [but] the applicability of the statute to conceded [or undisputed] facts is a question of law." (People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Corpening (2016) 2 Cal.5th 307, 312.)
Here, the jury found Escalante guilty of battery on a peace officer causing injury, a crime which requires a "willful and unlawful use of force or violence upon the person of" (§ 242) a "peace officer engaged in the performance of their duties" (§ 243, subd. (c)(2)). The jury also found him guilty of resisting an executive officer, a crime which requires the use of force or violence to knowingly resist an executive officer in the performance of their duty. (§ 69, subd. (a).) As charged in the operative first amended information, and argued to the jury by the prosecution, the victim of both crimes was Sergeant Acosta. To the extent the evidence indicates Escalante committed more than one act of force or violence against Acosta, the acts were indisputably part of a course of conduct with a single intent or objective-noncompliance with the ERT's attempt to remove him from the dorm. Thus, under section 654, Escalante may be punished for either battery on a peace officer or resisting an executive officer, but not both.
When section 654 applies, as here, the trial court must impose a sentence on each count and stay "execution of the duplicative sentence." (People v. Mani (2022) 74 Cal.App.5th 343, 380.) As the parties agree, we must remand the matter for the trial court to exercise its discretion in determining which count to stay.
Escalante also contends the trial court erred in imposing an upper term sentence on the battery count because there was no circumstance in aggravation found true by the jury or stipulated to by Escalante, as required under section 1170, subdivision (b). (§ 1170, subd. (b)(2) ["The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or the judge in a court trial"].) The Attorney General argues Escalante forfeited this challenge to his sentence by not objecting in the trial court. We need not decide this issue because we are remanding the matter to the trial court to address the section 654 error. On remand, the trial court's exercise of its discretion under section 654 in determining which count to punish Escalante for and which count to stay "creates sufficiently' "changed circumstances'" [citation] to warrant a full resentencing." (See People v. Jones (2022) 79 Cal.App.5th 37, 46, citing People v. Buycks (2018) 5 Cal.5th 857, 893.) Accordingly, we vacate Escalante's sentence and remand the matter for resentencing. At the resentencing hearing, Escalante may raise an objection to the imposition of an upper term sentence under section 1170, subdivision (b), if such an objection is applicable then.
DISPOSITION
The sentence is vacated, and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
We concur: ROTHSCHILD, P. J., WEINGART, J.