Opinion
D074178
11-13-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT PEREZ ARROYO, JR., Defendant and Appellant.
William G. Holzer, 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, Collette C. Cavalier and Arlene A. Sevidal, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1409810) APPEAL from a judgment of the Superior Court of Riverside County, Charles J. Koosed, Judge. Affirmed as modified. William G. Holzer, 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, Collette C. Cavalier and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Robert Perez Arroyo, Jr., appeals from a judgment, following convictions on three counts: attempted manslaughter, as a lesser included offense of attempted murder (Pen. Code, §§ 664, 187; count 1); mayhem (§ 203; count 2); and burglary (§ 459; count 3). Based on the four issues Arroyo raises in this appeal, we will conclude as follows: the record contains substantial evidence to support the mayhem conviction; the trial court did not err in failing to give a unanimity instruction; and the court should have stayed the punishments for mayhem and burglary.
Further undesignated statutory references are to the Penal Code.
Accordingly, we will modify the judgment to stay the sentence on counts 2 (mayhem) and 3 (burglary) and, as modified, affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The events in this case occurred at two neighboring rural properties, sometimes referred to as ranches, in Eastvale. Martin Chavez lived at one of the properties (Ranch 1)—a two-acre parcel that had multiple residences and a barn. He and Arroyo, his friend of approximately seven to 10 years, had worked together building wooden pallets at Ranch 1. Arroyo did not live at Ranch 1, although at times he slept in his car and kept some of his belongings there.
The incident took place on the morning of July 26, 2014—beginning at Ranch 2 and concluding at Chavez's residence on Ranch 1. The two ranches were located approximately a five-minute walk from each other.
Chavez started out the morning alone at Ranch 2. He drank one or two beers, by which time Arroyo and another person arrived. For reasons Chavez could not recall, he and Arroyo began arguing. Although Arroyo frequently argued with others, this was the first time he and Chavez had argued. Within five minutes, before either of them could finish anything else to drink, Arroyo hit Chavez with an almost empty bottle. The force of the contact broke the bottle, spilling the remaining liquid on Chavez's head and body, knocking Chavez to the ground, and causing Chavez to bleed from the head.
The testimony concerning the type of bottle Arroyo used to hit Chavez is inconsistent. At times, Chavez testified that it was a bottle of beer, and at times he testified that it was a bottle of homemade "pacarets"—drinks of "pure Mexican alcohol made from sugar cane with a spoonful of coffee, [a] little bit of sugar, [and a] little bit of chocolate Abuelita" added to cows' milk.
Chavez left Ranch 2, returning on foot to his residence on Ranch 1. Arroyo arrived at Chavez's residence approximately five to 10 minutes later. Because Arroyo had attacked Chavez at Ranch 2, when Arroyo arrived at Ranch 1, Chavez would not allow Arroyo to enter the residence and told him to leave. Meanwhile, Chavez placed outside a bag of Arroyo's belongings that had been at Chavez's residence and picked up a tool to protect himself given Arroyo's recent aggression at Ranch 2.
The record is not clear as to whether Arroyo walked or drove from Ranch 2 to Chavez's residence on Ranch 1.
Inside Chavez's residence, near the door, Chavez had (at least) a shovel and a machete.
Believing that Arroyo would respect the request that he leave, Chavez turned and went inside. Instead of leaving, however, Arroyo followed Chavez into his residence and picked up a two-and-a-half-footlong machete that was on the sofa next to the door. From behind, Arroyo hit Chavez in the back of the head with the machete, splitting open his head and leaving a horizontal gash from behind his left ear to almost the middle of the back of his head.
Chavez was wearing a thick lined hat—made of either rough wool or leather—that protected his head from direct contact with the blade of the machete. Had Chavez not been wearing the hat, he would have been injured much more severely, perhaps even killed.
After attempting to defend himself with an air gun of sorts, Chavez ran to a neighbor's property to hide. Meanwhile, with machete in hand, Arroyo proceeded to destroy Chavez's personal property in the residence.
Again, the testimony was inconsistent. At different times the evidence indicated the weapon shot BBs, darts, and pellets.
A Riverside County deputy sheriff arrived around midday. She found Chavez outside the residence, sitting on a chair with a towel on his head. After removing the towel, the deputy saw the fresh open gash on, and profuse bleeding from, Chavez's head. She also saw areas with smaller lacerations to his forearm, elbow, upper torso, and ear—all surrounded by dry blood. The cut on Chavez's right ear was two inches long and needed stitches. Chavez was in a lot of pain and felt that he was losing consciousness. An ambulance transported him to a hospital where he received medical care.
The district attorney filed a complaint against Arroyo, alleging three felonies, two with enhancement allegations. After a preliminary hearing, the district attorney filed an information, charging Arroyo as follows in three counts: attempted murder (§§ 664, 187, subd. (a); count 1) with allegations that he personally inflicted great bodily injury upon the victim (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)) and that he personally used a deadly and dangerous weapon (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)); mayhem (§ 203; count 2) with the allegation that he personally used a deadly and dangerous weapon (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)); and burglary of an inhabited dwelling (§ 459; count 3).
Following trial in September 2016, a jury convicted Arroyo of attempted manslaughter, a lesser included offense of attempted murder (count 1), mayhem (count 2), and burglary (count 3). The jury also found true the allegations that Arroyo personally inflicted great bodily injury upon the victim (count 1) and that he personally used a deadly and dangerous weapon (counts 1 & 2).
The court sentenced Arroyo to prison for a term of nine years eight months, as follows: On count 1, the court imposed the midterm of three years, plus consecutive terms of three years and one year for the two enhancements, respectively; on count 2, the court imposed a consecutive midterm of one year four months, plus one year for the enhancement which the court stayed (§ 654); and on count 3, the court imposed a consecutive midterm of one year four months.
Arroyo timely appealed.
II. DISCUSSION
On appeal, we presume the judgment is correct (People v. Giordano (2007) 42 Cal.4th 644, 666), and Arroyo, as the appellant, has the burden of establishing reversible error (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364).
Arroyo raises four issues: (1) whether the record contains substantial evidence to support the mayhem conviction; (2) whether the trial court erred in failing to give a unanimity instruction on the mayhem count; and (3 & 4) whether, pursuant to section 654, the court erred in failing to stay the punishment on the mayhem count and on the burglary count. As we will explain, we agree that section 654 requires the punishments for mayhem and burglary to be stayed and will modify the judgment accordingly. Otherwise, as we will explain, Arroyo did not meet his burden of establishing reversible error. Thus, we will affirm the judgment as modified. A. The Record Contains Substantial Evidence Supports the Mayhem Conviction
Arroyo contends that the record does not contain substantial evidence to support the mayhem conviction. We disagree.
1. Law
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Powell (2018) 5 Cal.5th 921, 990.) To be considered "substantial" for this purpose, the evidence "must be more than evidence which merely raises a strong suspicion of guilt as mere suspicion will not support an inference of fact." (People v. Martin (1973) 9 Cal.3d 687, 695; see People v. Holt (1997) 15 Cal.4th 619, 669 ["An inference is not reasonable if it is based only on speculation."].)
" 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' " (People v. Elliott (2012) 53 Cal.4th 535, 585.) As particularly applicable here, "the testimony of a single witness is sufficient to support a conviction," unless such testimony describes facts or events that are "physically impossible or inherently improbable." (Ibid.; accord, People v. Barnwell (2007) 41 Cal.4th 1038, 1052 ["the testimony of a single witness that satisfies the standard is sufficient to uphold the finding"].)
In short, we may not reverse a judgment following a jury verdict for insufficient evidence " 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (People v. Cravens (2012) 53 Cal.4th 500, 508.)
The jury convicted Arroyo of violating section 203, which, as applicable in this appeal, defines simple mayhem as follows: "Every person who unlawfully and maliciously deprives a human being of a member of his body . . . or slits the . . . ear . . . is guilty of mayhem." (Italics added.) Consistently, according to CALCRIM No. 801, the trial court instructed the jury as follows: "The defendant is charged in Count 2 with mayhem in violation of Penal Code section 203. To prove that the defendant is guilty of mayhem, the People must prove that the defendant unlawfully and maliciously slit someone's ear. [¶] Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with unlawful intent to annoy or injure someone else." (Italics added.)
Part 1, title 8, chapter 2 of the Penal Code is entitled "Mayhem" and contains—in addition to what we have called "simple" mayhem (§ 203)—the crimes of aggravated mayhem (§ 205) and torture (§ 206), which are not at issue in this appeal.
2. Analysis
According to Arroyo, the legal standard for establishing mayhem contains a minimum " 'level of seriousness' " which requires either that the "disfiguring injury . . . be permanent" (citing People v. Thomas (1979) 96 Cal.App.3d 507, 512 (Thomas)) or that the "disabling injury . . . be more than 'slight and temporary' " (citing People v. Santana (2013) 56 Cal.4th 999, 1010 (Santana)). We disagree with this suggested criterion.
In full, section 203 defines mayhem as follows: "Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem." Had disability or disfigurement been part of the People's claim and, thus, part of the People's required proof, a different jury instruction would have been required; and, notably, Arroyo does not raise an issue of instructional error on appeal. As we just explained, all that was at issue in the mayhem count here—i.e., all that the jury was asked to decide based on the jury instruction given—is whether Arroyo "unlawfully and maliciously slit [Chavez's] ear." There were no allegations by the People and, thus, no associated facts for the jury to decide with regard to whether, under section 203, Arroyo disfigured or disabled Chavez.
In the case where an alleged act of mayhem results in a disability or disfigurement, CALCRIM No. 801 provides (bracketed material in original; italics added):
"The defendant is charged [in Count ___] with mayhem [in violation of Penal Code section 203].
"To prove that the defendant is guilty of mayhem, the People must prove that the defendant unlawfully and maliciously:
"[1. . . . ]
"[OR]
"[2. Disabled or made useless a part of someone's body and the disability was more than slight or temporary(;/.)]
"[OR]
"[3. Permanently disfigured someone(;/.)]
"[OR]
"[4. Cut or disabled someone's tongue(;/.)]
"[OR]
"[5. Slit someone's . . . ear . . . .]
"[OR]
"[6. . . . .]" As we mentioned in the text, ante, the court instructed the jury exclusively under paragraph 5.
Because the two authorities on which Arroyo relies both involved disabling injuries—not slits to the victims' nose, ear, or lip—they are distinguishable and, accordingly, unpersuasive. In Thomas, supra, 96 Cal.App.3d 507, the victim's broken ankle was "disabled seriously" and "the disability . . . was sufficiently disabling . . . for an extended period of time to amount to mayhem." (Id. at p. 512.) Similarly, in Santana, supra, 56 Cal.4th 999, the defendant was charged with and convicted of mayhem "based on a disabling injury," where, after the victim was shot three times in the leg and buttock area, he had to walk with a cane and wear slippers, and he was unable to resume certain of his life's activities after the incident. (Id. at p. 1002.)
A more applicable precedent can be found in People v. Caldwell (1984) 153 Cal.App.3d 947. There, the defendant bit the victim's lower lip, resulting in lacerations which were in the process of healing. (Id. at p. 952.) The Court of Appeal rejected the defendant's argument "that the evidence was insufficient to sustain his conviction of mayhem because the wound to the victim's lip was not disfiguring enough to constitute mayhem within the meaning of the statute and applicable case law." (Ibid.) Emphasizing the disjunctive language of the statute, the court ruled that section 203 did not require evidence of disfigurement in addition to evidence of the slit lip; i.e., slitting a victim's lip, in and of itself, is an act of mayhem under section 203. (Ibid.)
Very simply, section 203 contains a number of acts of violence—in the disjunctive—any one of which will support a conviction of mayhem. Indeed, in Santana, the Supreme Court expressly commented that "section 203 includes among the injurious acts constituting mayhem . . . slitting the nose, ear or lip." (Santana, supra, 56 Cal.4th at p. 1010, italics omitted.)
Section 203 contains the word "or" seven times. CALCRIM No. 801 contains six different descriptions of conduct, each of which qualifies as an act of mayhem, with each description separated by "[OR]"—indicating a choice or selection to be made based on the evidence in the case under consideration. (See fn. 8, ante.)
The evidence here is undisputed: Chavez and Arroyo argued at Ranch 2; Arroyo smashed a glass bottle on the back of Arroyo's head, knocking Chavez to the ground and causing him to bleed; later, at Ranch 1,Arroyo swung a machete, hitting Chavez in the back of the head, splitting open his head and leaving a horizontal gash from behind his left ear to almost the middle of the back of his head; in addition, Chavez had smaller lacerations to his forearm, elbow, upper torso, and ear; and Chavez suffered a two-inch cut to his right ear which required stitches.
Despite this direct evidence, Arroyo further suggests that his conviction for mayhem be reversed because the record lacks substantial evidence of: (1) the depth of the wound; (2) the number of stitches required; (3) medical proof; (4) a photograph of the slit; and (5) testimony that Arroyo caused the slit to Chavez's ear. However, as we just explained in distinguishing Thomas, supra, 96 Cal.App.3d 507, and Santana, supra, 56 Cal.4th 999, the first three items are not necessary or required for a conviction based on a slit of the victim's ear, as opposed to a disabling or disfiguring injury. With regard to a photograph, any such evidence would be cumulative of the testimony from the deputy sheriff. Finally, as to the identity of the attacker, circumstantial evidence will support a conviction of mayhem (Thomas, at p. 510); and the evidence here is uncontradicted that the only attacks on Chavez were from Arroyo, who smashed the glass bottle on the back of Chavez's head at Ranch 2 and swung the machete around and into Chavez's head at Ranch 1. More specifically, the undisputed evidence is that, immediately after the blow to his head with the machete, Chavez turned around, and Arroyo, the only other person in the room, was holding the machete.
For the foregoing reasons, Arroyo did not meet his burden of establishing that the record lacks substantial evidence to support the mayhem conviction. B. The Trial Court Did Not Err in Failing to Give a Unanimity Instruction on the Mayhem Count
Arroyo argues that, because the People presented two separate acts in two separate locations to support the mayhem charge—namely, breaking the glass bottle on the back of Chavez's head at Ranch 2, and/or swinging the machete into Chavez's head at Ranch 1—the trial court erred in failing to instruct the jury that it had to agree unanimously on which act they relied in finding Arroyo guilty of mayhem. We are not persuaded that the court was required to give a unanimity instruction.
1. Law
Under the California Constitution, a unanimous jury verdict is required to convict a person of a crime. (Cal. Const., art. I, § 16; People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) In particular, the jury must agree unanimously that the defendant is guilty of a specific crime. (People v. Diedrich (1982) 31 Cal.3d 263, 281.)
When a defendant is charged with a criminal offense, but the evidence suggests more than one discrete crime, either the People must elect among the crimes or the trial court must instruct the jurors that they all agree on the same criminal act. (Russo, supra, 25 Cal.4th at p. 1132.) Where the evidence in the case suggests more than one discrete crime and the prosecutor does not elect among the crimes, the trial court is required sua sponte to give a unanimity instruction. (Russo, at p. 1132; People v. Riel (2000) 22 Cal.4th 1153, 1199.) The requirement for such an instruction " 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' " (Russo, at p. 1132, italics added.) However, "where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (Ibid., italics added.)
Here, the prosecutor did not elect (and, although not required, Arroyo did not request) a unanimity instruction.
For example, in deciding whether a defendant is guilty of murder, "the jury need not decide unanimously whether defendant was guilty as the aider and abettor or as the direct perpetrator." (People v. Santamaria (1994) 8 Cal.4th 903, 918; see People v. Jenkins (2000) 22 Cal.4th 900, 1024-1025 [jury may convict defendant of first degree murder without making unanimous determination whether murder was deliberate and premeditated or committed during the course of a felony].)
Because our consideration of whether the trial court should have given a particular jury instruction involves a mixed question of law and fact which is " 'predominantly legal,' " we review de novo whether a unanimity instruction was required. (People v. Hernandez (2013) 217 Cal.App.4th 559, 568 (Hernandez) [unanimity instruction].)
2. Analysis
In his opening brief, Arroyo acknowledges that "a unanimity instruction need not be given if the jury can only disagree on the theory of the case and cannot disagree on what criminal act was committed." (Italics added.) In the present case, there cannot be any disagreement as to what criminal act was committed—namely, mayhem by slitting Chavez's ear. (See pt. II.A.2., ante.) To the extent there was any disagreement, it was on the theory of the case—namely, whether Arroyo slit Chavez's ear by using a glass bottle or a machete.
In People v. Maury (2003) 30 Cal.4th 342, a murder prosecution, there was some evidence both that the victim died as a result of being struck by a rock and that she was strangled; there also was some evidence that another person, acting with defendant, may have killed the victim. (Id. at p. 422.) The defendant argued that the trial court should have given a unanimity instruction requiring that, in order to convict him of the killing, all jurors had to agree on the act or acts that caused the victim's death. (Ibid.) The Supreme Court disagreed, ruling that a unanimity instruction was not required, despite the alternative theories of guilt: If some jurors believed that the defendant had strangled the victim to death, they would conclude that he was the actual perpetrator; if some jurors believed that he threw a rock at her while she still was alive, they would conclude that he was an aider and abettor to her murder; and if any of the jurors thought that the defendant only threw a rock at the victim after she was dead, the jury would not have convicted, because it would have found no causation. (Id. at p. 423.) Because the "defendant's conduct as an aider and abettor or as a direct perpetrator could result only in one criminal act and one charge . . . , '[j]urors need not unanimously agree on whether the defendant is an aider and abettor or a principal even when different evidence and facts support such conclusion.' " (Ibid., italics added.)
Likewise, in the present case, Arroyo's conduct as a glass bottle smasher and a machete swinger resulted in only one criminal act and charge—mayhem. Accordingly, the trial court was not required to give a unanimity instruction. In the language of our Supreme Court, the evidence here "shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed." (Russo, supra, 24 Cal.4th at p. 1132, italics added.)
In any event, even if the court were required to give a unanimity instruction, the resultant error was harmless. The jury unanimously found true the allegation that, in committing the mayhem, "[Arroyo] personally used a deadly or dangerous weapon, to wit—a machete." Thus, all 12 jurors expressly agreed that Arroyo slit Chavez's ear with the machete. Consistently, Arroyo even acknowledges in his opening brief on appeal that "the jury unanimously believed the machete attack caused the injury." Given the jury's finding and Arroyo's concession, neither of Arroyo's arguments—either that "a jury is not necessarily bound to follow the prosecutor's statement of the law" (see fn. 13, ante) or that "appellate courts have found that beer bottles can be deadly weapons"—potentially supports a claim that Arroyo was convicted " 'even though there is no single offense which all the jurors agree the defendant committed.' " (Russo, supra, 45 Cal.4th at p. 1132.)
"There is a split of opinion in the appellate courts as to whether the Chapman [v. California (1967) 386 U.S. 18] standard or [People v. ]Watson [(1956) 46 Cal.2d 818] standard for harmless error applies in a unanimity instruction case." (Hernandez, supra, 217 Cal.App.4th at p. 576.) We need not decide which standard to apply, because the assumed error here is harmless under both.
In closing, the prosecutor argued: "Now, there's also an allegation to Count 2 . . . personal use of a deadly weapon. Now, when you guys deliberate, if you all believe collectively, the 12 of you, that it was beyond a reasonable doubt that it was the machete, then you would find the allegation true. If you all believe it was the bottle, then you would find it not true, or if you guys can't agree, some of you think it's the bottle and some of you think it's the machete, then it's not true. So in order to find that true, you all have to agree it was the machete. So if you guys don't agree, it's not true. If you all think it was the bottle, it's not true. Clear?"
For the foregoing reasons, Arroyo did not meet his burden of establishing that the trial court erred in not giving a unanimity instruction on the mayhem count. C. The Trial Court Erred in Not Staying the Punishments for the Mayhem and Burglary Convictions
Arroyo next argues that section 654 required the trial court to have stayed the punishments for the mayhem conviction and the burglary conviction. We agree.
1. Law
As applicable here, 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." The purpose of this statute is "to insure that a defendant's punishment [is] commensurate with his culpability." (People v. Perez (1979) 23 Cal.3d 545, 552 (Perez).) Where section 654 is applied in order to prohibit multiple punishment, "the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited." (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
Section 654 applies both where there was merely one physical act and "also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction." (Perez, supra, 23 Cal.3d at p. 551.) Accordingly, "[i]f all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Ibid., italics added; accord, People v. Latimer (1993) 5 Cal.4th 1203, 1208 [where all the crimes are " 'incident to one objective,' " there can be only one punishment]; People v. Britt (2004) 32 Cal.4th 944, 953 [where the commission of one offense is merely " 'a means toward the objective of the commission of the other,' " § 654 prohibits separate punishments for the two offenses].) In contrast, if the "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 (Harrison), italics added.) The application of section 654 thus "turns on the defendant's objective in violating" multiple statutory provisions. (Britt, at p. 952.)
The standard we are to apply, which was explained in detail in Neal v. State of California (1960) 55 Cal.2d 11, directs that section 654 be applied where multiple acts give rise to separate crimes if they were perpetrated with the same intent and objective. (Id. at p. 19.) In People v. Correa (2012) 54 Cal.4th 331, the Supreme Court disapproved of Neal on a different issue. (Correa, at p. 334 [Contrary to fn. 1 in Neal, "section 654 does not bar multiple punishment for multiple violations of the same criminal statute."].)
"Whether 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." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Accordingly, we review for substantial evidence the trial court's factual determination at the time of sentencing whether the crimes under consideration were incident to one objective or to multiple criminal objectives and must affirm if the decision is supported by substantial evidence. (People v. Brents (2012) 53 Cal.4th 599, 618 (Brents); People v. Perry (2007) 154 Cal.App.4th 1521, 1525.) We incorporate by reference our discussion of the substantial evidence standard of review set forth at part II.A.1., ante and apply it to the trial court's sentencing determination.
2. Analysis
a. Punishment for Conviction of Mayhem (Count 2)
Arroyo argues that, because the mayhem conviction arose out of the same act or course of conduct that resulted in the attempted manslaughter conviction, the punishment for the mayhem conviction should have been stayed under section 654. In support of his position, he relies on the facts and arguments in People v. Bui (2011) 192 Cal.App.4th 1002 (Bui) and People v. Pitts (1990) 223 Cal.App.3d 1547 (Pitts). While these cases apply the law to facts that may be comparable to those in the present case on appeal, in applying the requisite substantial evidence standard of review, we must focus on the record and trial court findings before us.
In Bui, where the defendant fired three gun shots at the victim within seconds of each other, the trial court erred in sentencing the defendant to consecutive terms on the convictions for attempted murder and mayhem. (Bui, supra, 192 Cal.App.4th at p. 1015.) In applying the substantial evidence standard of review, the appellate court ruled that the trial court erred in failing to stay the punishment for the mayhem conviction, because "[t]here was no evidence defendant had independent objectives for the two crimes that would justify multiple punishment." (Ibid., italics added.)
Similarly, in Pitts, the appellate court reversed the trial court's imposition of consecutive sentences on convictions for mayhem and assault, directing that the punishment for the assault be stayed, where the defendant had chased and attacked one victim. (Pitts, supra, 223 Cal.App.3d at p. 1560.) There, the Attorney General agreed that substantial evidence did not support the consecutive sentences, expressly "conced[ing], 'there was only one act' and imposition of a consecutive sentence for the assault violated Penal Code section 654." (Ibid.)
Therefore, we must look at the trial court's findings at the time of Arroyo's sentencing and determine whether they are supported by substantial evidence on the record that was before the court at the time. (Brents, supra, 53 Cal.4th at p. 618.) Here, when sentencing Arroyo to consecutive terms on the attempted manslaughter and mayhem convictions, the trial court made express findings for purposes of section 654. In disagreeing with the probation report recommendation to stay the punishment for the mayhem conviction under section 654, the court stated and found:
"[T]he intents [for the attempted manslaughter and mayhem offenses] are different. [¶] . . . [¶] . . . [The two offenses here] essentially arise[] out of the same transaction and occurrence. So I agree with that. That's why my point was that the intents are different. Someone's intent is different. With the blow to the head where he takes a big chunk out of his head, it was argued and found by this jury that that constituted attempted manslaughter, a different intent than was required for mayhem, which is the intent to maim, I guess."Thus, in the language of the Harrison opinion, the trial court here found that, although Arroyo committed the attempted manslaughter (§§ 664, 187) and the mayhem (§ 203) as part of "an otherwise indivisible course of conduct," Arroyo nonetheless "harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other" when he slit Chavez's ear and when he gashed Chavez's head. (Harrison, supra, 48 Cal.3d at p. 335, italics added.)
The record certainly contains substantial evidence to support the finding that the two offenses were part of an indivisible course of conduct. The only time Arroyo attacked Chavez with the machete was immediately after Arroyo entered Chavez's front door, just as Chavez turned his back on Arroyo and walked away from door. In the attack, Arroyo hit Chavez with the machete two or three times.
From the witness stand, Chavez described the distance he walked before being attacked by Arroyo as "from here to the table"—without identifying which table in the courtroom. --------
The record does not, however, contain substantial evidence to support the trial court's finding that Arroyo had " 'multiple criminal objectives' " (Harrison, supra, 48 Cal.3d at p. 335)—i.e., a separate or independent intent—when he slit Chavez's ear and when he gashed Chavez's head. Indeed, the Attorney General's showing on this issue is telling. First, he contends that "[Arroyo's] intent to kill Chavez is shown by the choice of a machete to inflict a blow to the back of Chavez's head causing an evulsion, gash, or crack of his skull." The Attorney General then merely rephrases the trial court's finding without more, arguing: "The intent to support the attempted manslaughter charge was separate and distinct from [Arroyo's] intent to maim Chavez when he slit [Chavez's] ear with the machete." The Attorney General does not mention evidence in support of this conclusory statement, and our independent review of the record has not disclosed any. Moreover, if the evidence in support of Arroyo's intent to kill was "shown by the choice of a machete to inflict a blow" that resulted in a gash to the back of Chavez's head (as argued by the Attorney General), then Arroyo's choice of the same machete moments later to inflict a blow that resulted in the slit of Chavez's ear would also support an intent to kill. The only direct evidence was testimony from Chavez, which included his perception and alleged statements from a third party, to the effect that Arroyo's attack with the machete could have, and should have, killed him (Chavez). Finally, the record in this appeal will not support an inference of an intent to maim, because, absent direct evidence otherwise, swinging a two-and-a-half-footlong machete into a victim's head will only support an intent to kill.
For the foregoing reasons, the trial court erred in not staying the punishment on the mayhem conviction under section 654.
b. Punishment for Conviction for Burglary (Count 3)
Arroyo argues that, because the burglary conviction arose out of the same act or course of conduct that resulted in both the attempted manslaughter conviction and the mayhem conviction, the punishment for the burglary conviction should have been stayed under section 654.
The Attorney General agrees that the punishment on the burglary conviction should be stayed.
Based on our independent review of the record on appeal, we too agree that the trial court should have stayed Arroyo's sentence on the burglary count. (See People v. Hester (2000) 22 Cal.4th 290, 294 (Hester) [entry for purposes of committing felony assault and the felony assault are one continuous transaction for purposes of § 654].)
For the foregoing reasons, the trial court erred in not staying the punishment on the burglary conviction under section 654.
3. The Judgments May Be Modified on Appeal
"[A] court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654." (Hester, supra, 22 Cal.4th at p. 295.) Since an unauthorized sentence may be corrected "whenever the error comes to the attention of the reviewing court" (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6), we will modify the judgment to stay the prison terms ordered on the convictions for mayhem (§ 203; count 2) and burglary (§ 459; count 3).
III. DISPOSITION
Pursuant to section 654, the sentences on count 2 (mayhem, § 203) and count 3 (burglary, § 459) are stayed pending finality of the judgment and Arroyo's service of the sentence on count 1 (attempted manslaughter, §§ 664, 187). The stays are to become permanent upon completion of Arroyo's sentence on count 1 (attempted manslaughter, §§ 664, 187). As so modified, the judgment is affirmed. The superior court is ordered to prepare an amended abstract of judgment reflecting these modifications and to send it to the Department of Corrections and Rehabilitation.
IRION, J. WE CONCUR: NARES, Acting P. J. O'ROURKE, J.