P. v. Marquez
Filed 5/22/13
P. v. Marquez CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SIXTH APPELLATE DISTRICT
THE
PEOPLE,
Plaintiff and Respondent,
v.
GERALD
PATRICK MARQUEZ,
Defendant and Appellant.
H038611
(Santa Cruz County
Super. Ct. No. F19488)
Gerald
Marquez appeals from a judgment entered upon his no contest plea to
§ 459) and two counts of assault by means of force likely to produce great
bodily injury (Pen. Code, § 245, subd. (a) (1)). On
appeal, he contends that the court's imposition of separate punishments on the
two assault counts violated Penal Code section 654. We disagree and therefore affirm the
judgment.
Facts
The
facts are derived from the victim's preliminary hearing testimony on December
6, 2010.
Appellant
and the victim were involved in an "on and off" dating relationship
beginning in late 2009. On a Friday in
May 2010, appellant accused the victim of "seeing other guys" and
told her he did not want to see her anymore.
The following day, after coming home from a bar, she entered her house
to find appellant standing in her kitchen.
She had not given appellant permission to enter her home. Appellant looked "irritated,
pissed," and asked "where the fuck you been." When she approached him, appellant hit her on
the face and she fell. He then began to
kick and stomp on her, from her face down to her legs, while repeatedly asking
how she could "do this to [him]" by going out with other guys.
Eventually,
the appellant stopped his assault to retrieve a text message that had appeared
on the victim's phone. After reading the
text message and demanding to know who had sent her the message, appellant
became "even madder" and resumed hitting and stomping on her. After what seemed like an hour to an hour and
a half, appellant stopped hitting her; she then she escaped to her bathroom and
locked herself inside.
While
the victim was inside the bathroom, appellant tried to force the door
open. He told her, "[y]ou better
let me in. This is only going to get
worse for you. Just let me in. It's
going to get worse." Then it was quiet,
and she believed he had left. However,
"the next thing [she] kn[e]w," he began pounding on the door to the
bathroom. Eventually, he took the door
off the hinges and it fell down on her.
At
that point, the victim testified, appellant "picked me up and went to slam
me into the mirror and I put my arm up . . . .
My elbow broke the mirror."
The impact cut her forearm.
Appellant then told the victim to take a shower and helped her into the
bathtub. At that point, she was no
longer able to walk. She was in the
shower for "quite some time," during which she repeatedly lost and
regained consciousness. Appellant then
helped the victim into her bed where she remained for the night. She was unable
to move and in considerable pain, and she continued to pass in and out of
consciousness.
For
the next two days, the victim experienced shortness of breath, pain in her
chest, and difficulty moving. Appellant
took her to her primary care physician, who told her to go to the emergency
room. The providers at the emergency
room informed the victim that her lungs had collapsed and were full of
fluid. As a result of the beating, the
victim's jaw was fractured, some of her teeth were chipped, and some of her
fillings had fallen out. By the time of
the preliminary hearing, which took place about seven months after the attack,
the victim had a scar from where doctors had drained her lungs, a black mark on
her face where appellant had stomped on it, and bruises on her arms and
legs. She was still experiencing back pain
and frequent headaches, and her jaw was "clicking."
Procedural History
Appellant
was charged by information with two counts of assault by means of force likely
to produce bodily injury, in violation of Penal Code section 245, subdivision
(a)(1), and two counts of first degree burglary, in violation of Penal Code
section 459.
title="">[1] Attached to each of the assault charges was
an allegation that appellant had inflicted great bodily injury on the victim,
within the meaning of section 12022.7.
One of the burglary charges was dismissed under section 995. On August 18, 2011, appellant pleaded nolo
contendere to the other burglary count and the two assault counts (counts one
and three), and he admitted the enhancement allegation pertaining to the first
assault. The court dismissed the
remaining enhancement allegation.
On
October 26, 2011, the trial court sentenced appellant to the upper term of four
years in prison on the first assault count, plus four years for the great
bodily injury enhancement. On the second
assault count, the court imposed a concurrent term of four years and imposed
the middle term of four years for the burglary but stayed that punishment under
section 654. This appeal followed.
Discussion
1.
The only issue on appeal is whether
section 654 requires the concurrent term for the second assault count to be
stayed. Section 654 provides, "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."
(§ 654, subd. (a).) It is
accepted that "[w]hether 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.]" (People
v. Jones (2002) 103 Cal.App.4th 1139, 1143; see also People v. Andra
(2007) 156 Cal.App.4th 638, 640–641, People
v. Lopez (2011) 198 Cal.App.4th 698, 717.)
The
purpose of section 654 "is to ensure that a defendant's punishment is
commensurate with his culpability."
(
341.) Consistent with this principle, "[g]enerally, a
person who violates the same statute multiple times is more culpable than a
person who violates the statute only once." (People
v. Sanders (2012) 55 Cal.4th 731, 742.)
Moreover,
"at some point
the means to achieve an objective may become so extreme they can no longer be
termed 'incidental' and must be considered to express a different and more
sinister goal than mere successful commission of the original crime
. . . [S]ection [654] cannot, and should not, be stretched to
cover gratuitous violence or other criminal acts far beyond those reasonably
necessary to accomplish the original offense." (People v. Nguyen
(1988) 204 Cal.App.3d 181, 191.)
The imposition of
concurrent sentences is prohibited by section 654 "because the defendant
is deemed to be subjected to the term of both
sentences although they are served simultaneously." (People
v. Miller (1977) 18 Cal.3d 873, 887.)
Therefore, when section 654 applies, "the trial court must stay
execution of sentence on the convictions for which multiple punishment is
prohibited." (Correa, supra,
54 Cal.4th at p. 337.)
In determining
whether section 654 applies to a particular case, a court will attempt to
discern the defendant's objective and intent at the time he committed the
criminal acts. The Supreme Court in Neal
v. State of California (1960) 55 Cal.2d 11, recited the test, or
"judicial gloss" (see People
v. Siko (1988) 45 Cal.3d
820, 822), that was followed until June 2012
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. 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." (Neal, supra, 55 Cal.2d at p. 19; see
also People v. Brown (1958) 49 Cal.2d 577, 591.)
On the other hand,
"[i]f [the defendant] entertained multiple criminal objectives which were
independent of and not merely incidental to each other, he may be punished for
independent violations 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. Beamon (1973) 8 Cal.3d 625, 639, fn. 11.) The trial court's determination that the
defendant had more than one objective is factual and will be upheld on appeal
if supported by substantial evidence. (
v. Saffle (1992) 4 Cal.App.4th
434, 438; People v. Lopez, supra, 198 Cal.App.4th at
p. 717.)
Additionally,
even if the defendant harbors but one objective throughout the commission of
the crimes, if his conduct is "divisible in time," it may be
appropriate to impose multiple punishments for the violations. (People
v. Gaio (2000) 81 Cal.App.4th 919, 935; People v. Beamon, supra, 8 Cal.3d at p. 639, fn. 11.)
"This is particularly so where the offenses are temporally
separated in such a way as to afford the defendant opportunity to reflect and
to renew his or her intent before committing the next one, thereby aggravating
the violation of public security or policy already undertaken.
[Citation.]" (People v. Gaio,
supra, 81 Cal.App.4th at p. 935.)
2.
Appellant
contends that section 654 applies to the sentencing on the two assault
counts. He insists that the beatings
outside the bathroom (count one) and inside the bathroom (count three) were
committed with a single objective—to harm the victim—and thus were parts of an
indivisible course of conduct.
Consequently, appellant argues, section 654 prohibits multiple
punishment and the concurrent term on count three should have been stayed.
Appellant
cites People v. Gaio,
distinguish it from the facts here. In
receiving and giving bribes over the course of several months and contended
that the bribes were accomplished with the same intent and objective. (Gaio,
supra, 81 Cal.App.4th at p.
935.) The Gaio court disagreed with the defendants' arguments that their
consecutive sentences violated section 654.
(Id. at p. 936.) The court concluded that because the bribes
were carried out with different intents and objectives and because they were
divisible in time, giving the defendants "an opportunity to reflect and to
renew his or her intent before committing the next one," the imposition of
separate sentences for each offense was appropriate. (Id.
at p. 935.)
Appellant
also cites People v. Lopez,
distinguish it from the case at hand.
There, the trial court imposed concurrent sentences for two counts,
using a stolen access card and petty theft of personal property, both items belonging
to the same victim. (
should not have run those sentences concurrently, and that instead the stolen
access card charge should have been stayed.
(Id. at pp. 716-717.) This court disagreed with the defendant because
the trial court "could reasonably have concluded" that the objectives
behind each crime were distinct. (
that passed in between the two offenses "was sufficient for him to reflect
upon what he had already done . . . and what he was about to do." (Id.
at p. 718.)
Appellant
maintains that unlike Gaio and
appellant harbored any objective at any time during the commission of these
offenses other than to inflict injury on [the victim]." Furthermore, "the assaults and the
burglary were part of a continuous course of conduct. There was no appreciable break in the action
such that it could be said appellant had an opportunity to reflect on his
actions." Appellant argues that
"it cannot be said that appellant had the opportunity to reflect and renew
his intent."
3.
The
Attorney General asks us to uphold the trial court's ruling, contending that
the sentence was supported by substantial evidence and does not violate section
654. In doing so, she offers three
arguments: that appellant had time to reflect between the two assaults, that
the purpose of section 654 supports the trial court's determination, and that
the appellant perpetrated the two assaults with different objectives.
Citing People v. Surdi (1995) 35 Cal.App.4th 685 and People
v. Kwok, supra, 63 Cal.App.4th 1236 for the proposition that a division between incidents can justify
multiple punishments, the Attorney General contends that a "sharp dividing
line" between the two attacks formed when the victim ran into the
bathroom. In her view, "there was a
substantial pause between the first series of assaults and the second,"
and consistent with Kwok and
punishment. Because "the trial
court properly inferred that there was a period of cessation of hostility that
divided the first assaults from the later assaults," she argues, the
sentence should be upheld.
The Attorney General further
contends that the purpose behind section 654 statute lends additional support
to the trial court's finding. Citing
1203, she reminds us that "section 654 is intended to insure that a
defendant's punishment will be commensurate with his culpability." She further argues that appellant's
"second round of attacks plainly increased his culpability" because they are "easily distinguishable
from his first battery of attacks in the kitchen."
The Attorney General also suggests
that during appellant's second attack on the victim he showed a different
intent and objective. Appellant's first
attacks were "presumably out of outrage over his belief that he had
discovered that she had been unfaithful.
However, the second series of attacks seemed to show a different intent,
that of teaching the victim that resistance to his will would be severely
punished," as it "would only make it worse" for her.
4. Analysis
We
agree with the Attorney General and thus find
court's imposition of concurrent sentences for the two assaults. Appellant suggests that "the most
reasonable interpretation of these events is that appellant was quiet for a
short period of time in an attempt to lull [the victim] into a false sense of
security so that she would open the door."
We are not convinced. The trial
court could have reasonably concluded that the pause outside the bathroom door
was evidence of something other than an attempt to lure the victim into a false
sense of security.
If
appellant was, in fact, attempting to instill in the victim a false sense of
security, his ability to do so implies that he had time to reflect on his
course of action; he was pausing to prepare for another attack on the victim
and developing his strategy for how to do so. Moreover, the victim was behind a closed door,
out of defendant's sight. There was
silence outside the door. Appellant had
an opportunity to refrain from further harming the victim and chose not
to. Instead, he resumed his attack,
breaking down the door and slamming her into a mirror.
Thus,
there was substantial evidence from which the trial court could have determined
that there was an "appreciable break"
in appellant's conduct such that he had an opportunity to reflect upon
his actions. This fact was sufficient to
preclude the application of section 654 to the separate assaults on the victim.
Disposition
The
judgment is affirmed.
_________________________________
ELIA,
J.
WE CONCUR:
______________________________
RUSHING, P. J.
______________________________
PREMO,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal
Code unless otherwise indicated.
sentencing does not preclude this appeal because he did not agree to a
specified sentence. (Cal. Rules of Court, rule 4.412 (b);
