Filed 11/8/18 P. v. Mendez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Reversed in part and remanded for resentencing.

Laura P. Gordon, 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, Arlene A. Sevidal, Randall D. Einhorn, and Joseph C. Anagnos, Deputy Attorneys General for Plaintiff and Respondent.

Armando Mendez contends the imposition of separate sentences for his convictions for assault with a deadly weapon and burglary with intent to commit assault with a deadly weapon violates Penal Code section 654, which precludes multiple punishments for a single act or an indivisible course of conduct.[1] We agree. Because defendant committed the burglary and the assault offenses with the same intent and objective of assaulting the victim, section 654 precludes multiple punishments for these offenses. We therefore affirm the judgment of conviction, reverse the sentence, and remand for resentencing.

BACKGROUND

Mendez was the victim's ex-boyfriend. Before she began dating Mendez, the victim had a prior dating relationship with J.R. The victim asked J.R. for assistance in changing the locks to her home. As J.R. was attempting to change the locks, Mendez approached him outside the victim's home and attempted to rob J.R. of his cell phone. After struggling with J.R. over his cell phone, Mendez brandished what appeared to be a gun and made a motion that looked like he was manipulating the gun's slide. Mendez threatened to kill J.R., who then ran away. Mendez entered the victim's home and hit her in the face repeatedly with the butt of the gun, knocking her unconscious.

When the victim regained consciousness, she ran to a neighbor's home and asked to borrow a phone. She called J.R., who took her to a hospital. The victim told the nurse treating her at the hospital that she was changing the locks because she did not want Mendez to return to the house and that Mendez came to the house with a gun and hit her repeatedly with the gun. Hospital personnel acknowledged that J.R. accompanied the victim to the hospital and described J.R. as being supportive of the victim while she was being treated. The victim sustained a fractured nose, a laceration requiring four stitches, and a hematoma on the side of her head.

The next day, the victim called 9-1-1 to report the incident, informing the dispatcher that the previous night, her ex-boyfriend Mendez had broken the lock on her door and broken her nose with a gun.

When she was subsequently interviewed by police officers, the victim told them J.R. was replacing the locks when Mendez came to her home and told J.R. he was going to kill him. She told the officers Mendez repeatedly struck her in the head with a handgun, causing her to lose consciousness, and she woke up covered in blood.

About a month later, Mendez set the victim's home on fire, killing the victim's dog. When the victim arrived home with J.R. after dinner, the fire department was already there. The victim, who was visibly shaken and upset, spoke with investigators on the scene. She told them she had received a call from Mendez earlier that day—during which Mendez had threatened to come to her home, kill her, kill her dog, and light her home on fire. She showed them her cell phone with multiple calls minutes apart from each other and told them that Mendez had hit her not long ago. When an investigator subsequently showed her screen shots from video surveillance of a man walking to and from her home at the time of the fire, she "freaked out" and "recognized and identified" the man as Mendez.

Afterward, the victim told inconsistent stories. An investigator from the District Attorney's office who had interviewed the victim testified she "was evasive in her answers initially during the interview. And as the interview went on, she eventually relayed she was assaulted by Mr. Mendez." However, despite prior statements to the contrary, when subsequently interviewed, she denied Mendez used a gun and said he took her cell phone from her and hit her in the face with the phone.

At trial, the victim testified that she did not get a good look at her assailant because he was wearing a hoodie. However, she also said she thought J.R. was the one who attacked her, and that he demanded that she blame Mendez for the assault. She claimed she blamed Mendez for the assault only because J.R. had threatened her. By the time of trial, the victim had given birth to a child and did not know whether J.R. or Mendez was the father. She had had a falling out with J.R., who had obtained a restraining order against her. J.R. testified that, when the victim called him shortly after he ran away following his confrontation with Mendez, the victim stated Mendez had hit her with the butt of a gun.

An information charged Mendez with willful, deliberate, and premeditated attempted murder, in violation of sections 187, subdivision (a), 664, and 189 (count one); arson of property and use of a device designed to accelerate the fire, in violation of sections 451, subdivision (b), and 451.1 (count two); animal cruelty, in violation of section 597, subdivision (a) (count three); making a criminal threat, in violation of section 422 (count four); attempted robbery, in violation of sections 211 and 664 (count five); first degree burglary of an inhabited dwelling house, in violation of sections 459, 460, subdivision (a), and 667.5, subdivision (c)(21) (count six); assault with a deadly weapon, in violation of section 245, subdivision (a)(l), with the allegation that Mendez personally inflicted great bodily injury, within the meaning of section 12022.7, subdivision (a) (count seven); and drawing or exhibiting an imitation firearm in a threatening manner, in violation of section 417.4 (count eight).[2] The information alleged four prison priors within the meaning of section 667.5, subdivision (b), a serious felony prior within the meaning of sections 667, subdivision (a)(1), 668, and 1192.7, and a strike prior within the meaning of sections 667, subdivisions (b) through (i), 1170.12, and 668.

Pertinent to our discussion post, the information specifically alleged that Mendez committed the burglary (count 6) "with the intent to commit a felony, to wit: assault with a deadly weapon . . . ."

A jury convicted Mendez on counts two through eight and found true all charged allegations. The court dismissed the attempted murder charge (count 1) on the People's motion when the jury was unable to reach a unanimous verdict as to that count. Mendez waived his jury rights as to his prior convictions and admitted he suffered four prison priors, the serious felony prior, and the strike prior.

The court sentenced Mendez to prison for a total term of 26 years, four months, calculated by imposing the middle term of five years on count two, doubled pursuant to the strike law to 10 years, plus four years for the section 451.1 allegation; plus the middle term of two years on count three, doubled to four years, concurrent to count two; plus one-third the middle term doubled to 16 months, consecutive on count four; plus the middle term of two years on count five doubled to four years, concurrent to count two; plus the middle term of four years as to count six, doubled to eight years, concurrent to count two; plus one-third the middle term of three years doubled plus one year for the personal infliction of great bodily injury enhancement for a mandatory three-year consecutive term on count seven. The court imposed a mandatory five-year consecutive term for the serious felony prior and three one-year consecutive terms for the prison priors. As to count eight, a misdemeanor, the court imposed 180 days custody with credit for time served.

DISCUSSION

Mendez contends imposing separate sentences for both burglary and assault with a deadly weapon violates section 654's prohibition against multiple punishments for a single act. In response, the Attorney General contends punishment for both counts is warranted because "the record discloses substantial evidence that [Mendez] also entered the dwelling with the intent to steal." Mendez replies with two arguments: first, he contends there is no basis for finding that Mendez entered the victim's home with the intent to steal her cell phone, and second, because the prosecution did not proceed with this theory at trial and the jury was instructed only on assault as the basis for the burglary charge, the Attorney General cannot now assert a new theory not advanced at trial. As we will explain, we agree section 654 precludes multiple punishments for both the burglary and assault with a deadly weapon charges.

A. Section 654

Section 654, subdivision (a), provides that "[a]n 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." In addition to precluding multiple punishments for a single act, section 654 also precludes multiple punishments for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; People v. Tarris (2009) 180 Cal.App.4th 612, 626.) " ' "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. 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." ' " (People v. Capistrano (2014) 59 Cal.4th 830, 885 (Capistrano), overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 104.) " '[T]he purpose of section 654 "is to insure that a defendant's punishment will be commensurate with his culpability." ' [Citation.]" (Capistrano, at p. 886.)

Whether a defendant had multiple intents or objectives in committing multiple crimes is generally a question of fact for the sentencing court. (People v. Coleman (1989) 48 Cal.3d 112, 162.) "When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective." (People v. Islas (2012) 210 Cal.App.4th 116, 129 (Islas).) Such findings will be upheld on appeal if supported by substantial evidence. (Ibid.)

A defendant's failure to object to a consecutive sentence in the trial court does not forfeit a section 654 issue on appeal. (People v. Perez (1979) 23 Cal.3d 545, 549-550, 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 or assigned as error on appeal."].)

B. Analysis

The record supports Mendez's contention that he harbored a single intent and objective in committing both crimes at issue—the intent to assault the victim. As such, imposing multiple punishments for burglary and assault with a deadly weapon violates section 654. Although the Attorney General contends there is substantial evidence to support an alternative, implied finding that Mendez committed burglary with the intent to commit a theft, that argument is foreclosed by the circumstances of this case.

"Burglary consists of entry into a house or other specified structure with the intent to commit a felony. (Pen. Code, § 459.) Thus, ordinarily, if the defendant commits both burglary and the underlying intended felony, Penal Code section 654 will permit punishment for one or the other but not for both." (People v. Centers (1999) 73 Cal.App.4th 84, 98.) The ruling in People v. Radil (1977) 76 Cal.App.3d 702 is instructive. As here, the defendant in that case was charged with both assault and burglary offenses. Both charges were alleged to involve the same intent—assault with great bodily harm. (Id. at p. 709.) The court held that "it was improper to sentence appellant for both assault and burglary where the entry for purposes of assault constituted the requisite act for burglary. The entry for purposes of assault and the assault itself formed one continuous transaction. [Citation.] This constitutes a violation of Penal Code section 654." (Id. at p. 713.) We reach the same conclusion here, where the underlying intended felony which was charged and presented to the jury was assault with a deadly weapon.

The Attorney General contends People v. Nelson (1989) 211 Cal.App.3d 634 is instructive here, but it is distinguishable. There, the defendant was charged with burglary with intent to commit theft. (Id. at p. 639, fn. 3.) Upon entry, defendant also committed separate assault offenses when the occupants resisted the theft. (Id. at p. 636.) The Court of Appeal concluded the defendant could be separately punished for the burglary and the assaults. (Id. at p. 639.) The Nelson court distinguished Radil, stating: "Unlike People v. Radil, supra, 76 Cal.App.3d 702, the intent to commit felonious assault was not charged as an element of the burglary." (Nelson, at p. 639, fn. 3.) This case is like Radil (and unlike Nelson) because the intent to commit felonious assault was charged as an element of burglary. As noted ante, the operative charging document alleged that Mendez "did unlawfully enter a building with the intent to commit a felony, to wit: assault with a deadly weapon." After confronting J.R. outside the victim's home and threatening to kill him, Mendez entered the victim's home and beat her repeatedly with a gun until she lost consciousness. The burglary with the intent to commit a specific felony—assault with a deadly weapon—and that same felony committed upon entry cannot be sentenced separately.

The Attorney General further contends there is substantial evidence to support an implied finding that Mendez had a separate intent and objective to steal the victim's cell phone when he entered her home. The Attorney General therefore concludes sentencing Mendez for both burglary and assault with a deadly weapon was justified. A trial court may base its sentencing decision on any facts that are in evidence at trial, without regard to the verdict, unless there are circumstances which foreclose the trial court from doing so. (People v. McCoy (2012) 208 Cal.App.4th 1333, 1339-1340 (McCoy).) For example, in People v. Siko (1988) 45 Cal.3d 820, both the charging document and the verdicts specified two particular sex offenses as the basis for two general molestation convictions. (Id. at p. 826.) Because neither the jury instructions nor the closing argument suggested any other basis for the molestation counts, the People could not advance an alternative factual basis for those convictions based on the evidence at trial. (Ibid.) "Siko is thus authority that where there is a basis for identifying the specific factual basis for a verdict, a trial court cannot find otherwise in applying section 654." (McCoy, at p. 1339; People v. Bradley (2003) 111 Cal.App.4th 765, 770 [section 654 precluded multiple punishments for robbery and attempted murder; where prosecution tendered a single theory of guilt under which the defendant entertained a single objective, the trial court could not "countermand the jury and make the contrary finding" that the defendant in fact harbored multiple objectives].)

Here, it is clear the jury's verdict on the burglary count could only be based on the underlying assault. As already noted, assault was the only underlying felony charged for the burglary in this case. The prosecutor repeatedly emphasized this singular theory at trial. During the jury instruction conference, the trial court asked the prosecutor, "I think the People's theory—correct me if I am wrong—defendant entered a building. When he entered, he intended to commit assault with a deadly weapon." The prosecutor responded, "That's correct." The court then asked, "[T]here is just a sole theory of assault with a deadly weapon. Everyone agree on that?" to which both counsel replied, "Yes, your honor."

During the same conference, the parties discussed the deadly weapon used in the assault. The prosecutor indicated the deadly weapon was the gun Mendez used to threaten J.R. Defense counsel noted, "I mean, at some point there is evidence that she allegedly was struck with a cell phone." The prosecutor stated, "That's not the theory we are proceeding on."[3]

Consistent with the prosecution's theory, the trial court instructed the jury that burglary required entry of a building with the specific intent to commit assault with a deadly weapon:

"To prove the defendant is guilty of this crime, the People must prove that: one, the defendant entered a building; and, two, when he entered the building, he intended to commit an assault with a deadly weapon against [the victim].

[¶] . . . [¶]

"The People allege that the defendant intended to commit assault with a deadly weapon. You may not find the defendant guilty of burglary unless you all agree that he intended to commit assault with a deadly weapon at the time of the [entry]."

The People never wavered from this singular theory. In closing argument, the prosecutor argued:

"Count 7, burglary. Burglary is something that is commonly misunderstood. What burglary is, is not the actual taking of something when you are in a property, it is the entering into the property with the intent to do something. And there are two different types of burglary. There is entering somewhere with the intent to commit a theft, but also entering the building with the intent to do some other crime. Here, the defendant is charged with burglary for entering [the victim's] home with the intent to assault her.

"Now, how do we know when he entered the home, he intended to assault her? Because he had already threatened [J.R.] outside with the gun. He had already threatened and tried to rob [J.R.] before entering the house. His blood was already boiling before he went into the house.

"When he went into that house, when he crossed the threshold, the only thing that could have been and was on his mind is, I'm going to injure [the victim] because I'm jealous and I'm angry. That's exactly what he did."

In sum, the charging document, jury instructions, and prosecutor's arguments presented a single theory with respect to the burglary offense—that it was committed with the intent to assault the victim. On this record, we cannot conclude that Mendez had multiple objectives in unlawfully entering the victim's home. (McCoy, supra, 208 Cal.App.4th at pp. 1339-1340; Siko, supra, 45 Cal.3d at p. 826.) Because Mendez's burglary of the victim's residence and his assault with a deadly weapon on the victim were incident to one objective, section 654 applies to those charges.

The erroneous failure to stay execution of a sentence under section 654 constitutes an unauthorized sentence. (Islas, supra, 210 Cal.App.4th at p. 129, fn. 3.) We have the authority to modify the judgment to impose and, as appropriate, stay execution of the sentences and affirm the judgment as modified. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1473.) In the present case, however, the Attorney General contends that remand for resentencing is appropriate under People v. Burns (1984) 158 Cal.App.3d 1178 (Burns). The Burns court explained that "staying execution of the penalty imposed for the lesser offense remains the preferred remedy where the reduction in sentence would be relatively minor, or where the maximum legal sentence has already been imposed." (Id. at p. 1184.) However, in certain circumstances, such as those where the appellate correction would significantly reduce the sentence "without any necessary warrant to do so in the facts of the case," remand is warranted. (Ibid.) The Attorney General contends this case warrants remand because the trial court ran Mendez's eight-year sentence for burglary concurrently with his sentence for arson and ran his three-year sentence for assault consecutively. Mendez appears to agree that remand for resentencing is appropriate.[4] We agree that the sentencing structure here justifies remand to the trial court for resentencing. "On remand, the trial court is entitled to reconsider its entire sentencing scheme. [Citation.] However, . . . appellant may not be sentenced on remand to a term in excess of his original sentence." (Ibid.)

DISPOSITION

The judgment of conviction is affirmed, but the sentence is reversed insofar as it imposes and executes sentences for both assault with a deadly weapon and burglary. The matter is remanded for resentencing consistent with this opinion.

GUERRERO, J.

WE CONCUR:

IRION, Acting P. J.

DATO, J.