Opinion
A148966
12-20-2017
THE PEOPLE, Plaintiff and Respondent, v. ABEL NAZARIO GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. Nos. FCR311281, FCR319343)
Appellant Abel Nazario Garcia was sentenced in two underlying cases to a total of 12 months in jail and three years and eight months in prison. He contends the trial court erred in failing to stay punishment on two counts under Penal Code section 654. We agree with regard to one of the offenses and otherwise affirm.
All undesignated statutory references are to the Penal Code.
BACKGROUND
Case number FCR311281 was based on an October 2014 incident. The victim, Selina U., testified at trial that she had known appellant for about ten years, and they had three children together. In October 2014, appellant was staying in her apartment, but she asked him to leave because he appeared to be under the influence of methamphetamine, which made her feel unsafe. Appellant left belongings at her apartment, including clothing and a tablet computer. The next day, appellant called Ms. U. and said he wanted to pick up his belongings, but she told him he could not come until he was sober. Appellant called repeatedly, seeking to come get his belongings. At some point during the night she turned off the ringer. Appellant called again the next morning, again asking for his belongings, and he and Ms. U. argued. Subsequently, she heard a noise at the front of her apartment. She ran to the front door and saw appellant break a window and enter the apartment. Ms. U. fled outside, but appellant grabbed her hair and started hitting her on the landing in front of her apartment. He hit her repeatedly with his hands and then with a chair. Appellant left when neighbors intervened and yelled at him to stop.
Case number FCR319343 was based on an April 2015 incident during which a Solano County Sheriff's Deputy apprehended appellant after observing him driving recklessly. Appellant had slurred speech and bloodshot eyes, and was agitated and sweating profusely. Appellant told the officer he used crystal methamphetamine a day-and-a-half before. While the patrol car was parked outside a "patrol station," appellant broke a window of the car and pushed past an officer to climb out. Appellant kicked two officers before they were able to restrain him.
As appellant pled no contest, this factual summary is based on the preliminary hearing transcript and probation report.
In February 2016, in case number FCR311281, a jury convicted appellant of felony domestic violence (injuring the mother of his children; § 273.5, subd. (a)) and misdemeanor vandalism (§ 594, subd. (a)). That same month, appellant pled no contest in case number in FCR319343 to felony vandalism (§ 594, subd. (b)(1)), misdemeanor driving under the influence (Veh. Code, § 23152, subd. (e)), and misdemeanor resisting arrest (§ 148, subd. (a)).
In June 2016, in case number FCR311281, the trial court imposed a three-year prison term for the felony domestic violence conviction and a concurrent six-month term for the misdemeanor vandalism conviction. In case number FCR319343, the court imposed a consecutive eight-month prison term for the felony vandalism conviction, a consecutive six-month jail term for the driving under the influence conviction, and a consecutive six-month jail term for the misdemeanor resisting arrest conviction.
This appeal followed.
DISCUSSION
Section 654, subdivision (a), 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." "Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single 'intent and objective' or multiple intents and objectives." (People v. Corpening (2016) 2 Cal.5th 307, 311-312; see also People v. Latimer (1993) 5 Cal.4th 1203, 1208 [" '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.' "] (Latimer).) "A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence." (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Appellant contends the six-month concurrent term imposed for misdemeanor vandalism in case number FCR311281 must be stayed pursuant to section 654 because when he broke Ms. U.'s window he "had a singular intent to commit the assault and . . . the vandalism of the window was a step in the course of conduct towards fulfilling that intent." We disagree. Substantial evidence supports the trial court's implied finding appellant also broke the window to facilitate recovery of his possessions from Ms. U.'s apartment, which was the subject of numerous phone calls prior to the assault. That appellant chose to pursue and assault Ms. U. rather than recover his belongings did not obligate the trial court to conclude he did not intend to recover his belongings when he broke the window. That separate objective is sufficient basis under section 654 to punish appellant for both the vandalism and the assault. (See, e.g., People v. Leonard (2014) 228 Cal.App.4th 465, 499 [" 'If [a 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.' "].)
Appellant contends the six-month consecutive term imposed for misdemeanor resisting arrest in case number FCR319343 must be stayed pursuant to section 654 because breaking the window of the police car and resisting the officers outside the car was "an indivisible course of conduct with a single intent and objective." We agree. Respondent argues separate punishment for vandalism and resisting arrest is "commensurate with [appellant's] culpability." However, even if appellant is more culpable than a person who resists arrest without a prior act of vandalism, that does not permit multiple punishment under section 654 if the acts were part of an indivisible course of conduct with one objective. (See Latimer, supra, 5 Cal.4th at p. 1211 [acknowledging that the "intent and objective" test does not "ensure" commensurate punishment]; accord People v. Correa (2012) 54 Cal.4th 331, 341.) In the present case, it is clear that breaking the window and resisting the officers were part of an indivisible course of conduct with a singular objective of escape or resistance. Respondent suggests no other possible objective. We also reject respondent's suggestion multiple punishment was permissible because " 'the offenses [were] temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent . . . .' " (People v . Kurtenbach (2012) 204 Cal.App.4th 1264, 1289.) Kurtenbach cites cases applying that rule where the offenses in question "were committed on different days." (Ibid.) In the present case, appellant started resisting one of the officers before he even made it out of the window; there was no opportunity for reflection. Accordingly, the trial court erred in failing to stay punishment on the misdemeanor resisting arrest charge.
DISPOSITION
The judgment is hereby modified to reflect that execution of the consecutive six-month jail sentence imposed for the misdemeanor resisting arrest conviction in case number FCR319343 is stayed pursuant to section 654. As modified, the judgment is affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.